Australia: Competition and Consumer Law News – 13 June 2018

Last Updated: 20 June 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

Court ruling on Essendon drugs saga edges AFL boss nearer to trial
Supreme Court judge John Dixon ruled in favour of Melbourne lawyer Jackson Taylor on two key issues. Taylor has fought against the AFL for years, alleging McLachlan and Fitzpatrick engaged in misleading or deceptive conduct through the scandal which rocked the sport when exposed in February 2013 (06 June 2018). More...

Jenny Craig pays penalty for "10kg for $10" ads
Jenny Craig Weight Loss Centres Pty Ltd (Jenny Craig) has paid $37,800 in penalties following the ACCC issuing three infringement notices for alleged false or misleading representations in breach of the Australian Consumer Law. From December 2017 to February 2018, Jenny Craig represented in television advertisements people could lose up to 10kg of weight for a $10 program fee, without adequately disclosing customers also had to purchase food at an additional cost (05 June 2018). More...

Accused $180 million Pilbara 'Ponzi' scheme promoter Veronica Macpherson banned by ASIC
A WA businesswoman under investigation for masterminding a suspected $180 million "Ponzi" scheme, in which Malaysian and Singaporean investors were courted to invest in Pilbara property, has been permanently banned from providing financial services (04 June 2018). More...

Criminal cartel charges laid against ANZ, Citigroup and Deutsche Bank
Citigroup Global Markets Australia Pty Limited (Citigroup), Deutsche Bank Aktiengesellschaft (Deutsche Bank) and Australia and New Zealand Banking Group Ltd (ANZ) have been charged with criminal cartel offences following an investigation by the ACCC. Criminal charges have also been laid against several senior executives: John McLean, Itay Tuchman and Stephen Roberts of Citigroup; Michael Ormaechea and Michael Richardson formerly of Deutsche Bank; and Rick Moscati of ANZ (05 June 2018). More...

ANZ bank to face criminal cartel charges
The ANZ bank, as well as Citigroup and Deutsche Bank, are expected to face criminal cartel charges after an investigation from the Australian Competition and Consumer Commission. The expected charges relate to the bank's $2.5bn capital raising in late 2015 (01 June 2018). More...
ACCC statement regarding Citigroup
ACCC statement regarding ANZ
ACCC statement regarding Deutsche Bank

Former Australian Bight Abalone CEO sentenced to 3 and a half years prison over false and misleading information
Mr Andrew Ferguson, the former Chief Executive Officer of South Australian abalone farm Australian Bight Abalone (ABA) has been sentenced in the District Court following an ASIC investigation which resulted in Mr Ferguson being charged with 17 counts of providing false and misleading information to the ABA Board of Directors and prospective investors (01 June 2018). More...

Court lifts suppression orders in ACCC's CFMEU case
The Federal Court has lifted suppression and non-publication orders in the ACCC case against the CFMEU, and published an unredacted copy of its judgment. The ACCC commenced proceedings against the CFMEU in November 2014 alleging it had engaged in secondary boycott conduct in breach of section 45D of the Competition and Consumer Act (2010) (01 June 2018). More...

Unlockd wins bid to stop Google blocking app in Australia
Mobile advertising startup Unlockd won a temporary injunction from the Federal Court barring Google from blocking its app in Australia until further hearing, in the first case to test revamped misuse of market power laws. The case alleges misleading and deceptive conduct under the Australian Consumer Law and accuses Google of misusing its market power in violation of section 46 of the Competition and Consumer Act (31 May 2018). More...

Wilson Security to refund $740,000 for services not provided
Wilson Security Pty Ltd (Wilson Security) will refund 320 Western Australian customers a total of $740,000, after charging for security patrols that were not provided in breach of Australian Consumer Law. Wilson Security has admitted that by charging customers for services that were not provided, they engaged in misleading or deceptive conduct and made false or misleading representations (30 May 2018). More...

Victorian Supreme Court judge rules in Optus' favour over advertising stouch
Optus has won a legal stoush over its "empires end" ads, with Victoria's Supreme Court rejecting Telstra's claims they amount to misleading or deceptive conduct. The telco claimed Optus' use of the phrase wrongly implied it "undisputedly" operated Australia's best mobile network, but Justice Ross Robson was not convinced (30 May 2018). More...

Cases

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684
COMPETITION – secondary boycott – pecuniary penalties – course of conduct and totality principles – relevance to penalty of actual loss and damage occurring in secondary boycott – injunctions – compliance program – form of declarations.
COSTS – Calderbank offer – relevant factors – special consideration of regulator's role.
COSTS – apportionment of costs Fair Work Act 2009 (Cth); Trade Practices Act 1974 (Cth).

Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2018] FCAFC 78
COMPETITION – appeal by the Australian Competition and Consumer Commission against an order of the Federal Court dismissing a proceeding against Pfizer in which the ACCC alleged that Pfizer had contravened s 46 and s 47(1) of the Competition and Consumer Act 2010 (Cth) when it took certain steps pursuant to a plan designed to enable Pfizer to compete in the market for the wholesale supply of a pharmaceutical (atorvastatin) to community pharmacies in Australia after the expiry of the Australian patent for atorvastatin held by Pfizer.
COMPETITION – misuse of market power – whether the primary judge erred in market definition – whether the respondent had a substantial degree of market power in the relevant market – whether the respondent took advantage of its market power – whether the respondent had the purpose of "deterring" a person from engaging in competitive conduct in the atorvastatin market – whether the ACCC's case as pleaded was legally incoherent.
COMPETITION – exclusive dealing – whether the respondent supplied upon "condition" – whether the respondent had the purpose of substantially "hindering" competition in the atorvastatin market – whether s 51(3) defence was established.

Hilchrist Pty Ltd v Visual Integrity Pty Ltd [2018] QDC 097
CONTRACT – Agreement contemplating formal document – whether formal agreement superseded informal agreement – effect of change of parties.
CONTRACT – Conditions and warranties – interpretation of terms – whether breaches of warranties proved – whether substantial damages proved.
EQUITY – Equitable estates and interests – vendor's lien – whether available over personalty – whether arising.
FRAUD, MISREPRESENTATION AND UNDUE INFLUENCE – Alienation of property with intent to defraud – nature of intent – whether proved.
TRADE PRACTICES – Misleading and deceptive conduct – whether representation made – whether relied on.

Telstra Corporation Ltd v Singtel Optus Pty Ltd (No 2) [2018] VSC 280
CONSUMER LAW – Alleged misleading or deceptive conduct – Whether defendant's advertisements breach Australian Consumer Law (sch 2 to the Competition and Consumer Act 2010 (Cth)) – False or misleading representations – Whether representations liable to mislead as to performance characteristics of services – held advertisement did not convey pleaded representations – Claim dismissed.

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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