Australia: Competition & Consumer Law News – 10 July 2018

Last Updated: 12 July 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2018

In the media

ACCC bid-rigging case against Cascade Coal dismissed
The Federal Court has dismissed the ACCC's case alleging Cascade Coal and others had engaged in bid rigging in relation to mining exploration licences. Reasons for judgment have been suppressed until 13 July. The ACCC has been granted extra time to appeal the ruling until 3 August (06 July 2018). More...

Funeral insurer targeting Indigenous Australians ignored court orders
A funeral insurer that heavily targets Indigenous Australian customers failed to include a disclaimer in some of its advertising that it was not an Aboriginal organisation, breaching Federal Court orders. The disclaimer that ACBF is neither an Aboriginal body, nor linked to the government, had been required since 1999 as a result of legal action from the ASIC, which had accused the company of misleading and deceptive conduct (03 July 2018). More...

Full Court finds LG made misleading representations
The Full Federal Court has partially upheld an appeal by the ACCC against an earlier judgment dismissing the ACCC's case against LG Electronics Australia Pty Ltd (LG).The Full Court found that LG made two representations to consumers that were false, overturning the initial court decision, but dismissed the ACCC's appeal in respect of other LG statements made to consumers (27 June 2018). More...

Air NZ penalised $15 million for price fixing
The Federal Court has ordered Air New Zealand (Air NZ) to pay $15 million in penalties after legal action by the ACCC against a global air cargo cartel. The Court found Air NZ made and gave effect to agreements with other airlines to fix the price of fuel and insurance surcharges on air freight services from Hong Kong, and insurance and security charges from Singapore, to various locations, including Australian airports, between 2002 and 2007 (27 June 2018). More...

Action against Mitolo for alleged unfair contract terms
The ACCC has instituted proceedings against Mitolo Group Pty Ltd and a related entity (together, Mitolo) alleging that several terms in Mitolo's standard form contracts with potato farmers are unfair contract terms, and that Mitolo has breached the Horticulture Code in its dealings with farmers. The contract terms which the ACCC alleges are unfair include terms that allow Mitolo to unilaterally determine or vary the price Mitolo pays farmers for potatoes (26 June 2018). More...

Country of origin food labelling surveillance to commence
After 1 July, Australian consumers will have much greater certainty about the origins of the food they buy, due to the introduction of mandatory Country of Origin food labelling. ACCC Deputy Chair Mick Keogh said some consumers are willing to pay extra for products grown, produced or made in Australia, and producers and importers should be aware that any claim which is likely to mislead consumers will also be a breach of the law (26 June 2018). More...

ASIC wants AFCA to report mis-selling
The Australian Financial Complaints Authority should report insurers to the regulator if they engage in unconscionable conduct to sell cover that is not needed or could not be claimed on, a guidance note for the new scheme says (25 June 2018). More...

ACCC seeks special leave to appeal in Pfizer
The ACCC has applied for Special Leave to appeal to the High Court against the Full Federal Court's decision. The Full Federal Court last month dismissed an appeal against Justice Flick's decision at first instance. The ACCC also failed to have the Full Federal Court overturn Justice Flick's finding that Pfizer had not supplied pharmacies on a relevant 'condition' as required for purposes of s.47 (exclusive dealing) (25 June 2018). More...

ACCC takes Pfizer competition case to High Court
The Australian Competition and Consumer Commission is seeking special leave from the High Court to appeal a ruling in a case alleging drug giant Pfizer misused its market power ahead of the expiration of its patent for Lipitor. The ACCC wants to challenge the Full Federal Court's decision on 25 May that let stand a judgement in favour of Pfizer (25 June 2018). More...

ACCC calls for simpler, more transparent health insurance
The ACCC has released its annual report into the private health insurance industry, calling for the industry to make its products more consumer friendly by providing reliable and transparent information about product features and changes to private health insurance policies (25 June 2018). More...

Former Kimberley Diamonds executive chairman acquitted on two charges of misleading the market
Mr Alexandre Alexander, the former executive chairman of Kimberley Diamonds Ltd, was on 25 June 2018 found not guilty on two counts related to issuing false or misleading information to the market following a jury trial in the District Court of NSW. On 26 June 2018 the jury was not able to reach a unanimous decision in relation to two other charges of misleading the market (27 June 2018). More...

House Economics Committee to scrutinise ACCC
The Standing Committee on Economics, which can inquire into and report on any annual reports referred to it by the House of Representatives, has agreed to undertake an inquiry into the Australian Competition and Consumer Commission's Annual Report 2017 (27 June 2018). More...

Cases

Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96
CONSUMER LAW – consumer protection – ss.18(1) and 29(1)(m) of the Australian Consumer Law (the ACL) –misleading or deceptive conduct – false or misleading representations made concerning the existence, exclusion or effect of consumer guarantee in contravention of provisions of the ACL – appeal allowed in part. Competition and Consumer Act 2010 (Cth) ss.18, 29, 54, 259, 271, 274.

Actron Investments Queensland Pty Ltd v DEQ Consulting Pty Ltd [2018] QCA 147
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – MISLEADING OR DECEPTIVE: WHAT CONSTITUTES – where the appellant purchased a commercial lot in a community titles scheme which included a corporate headquarters/warehouse – where the floor was a floating concrete slab – where the first respondent (through the second respondent) issued a Form 15 Compliance Certificate - Design under the Standard Building Regulation 1993 (Qld) by reference to the Building Code of Australia (2006) – where this form was relied upon and used by the building certifiers as conveying the engineering opinion that the anticipated loads would be resisted by the floating concrete slab without undue settlement – where the building certifier was entitled to rely on the Form 15 for this purpose –where the floating slab subsided due to marine clays in the subsurface shrinking and swelling, and settlement occurred because of the consolidation of compressible marine clays – where the appellant claimed damages against the first respondent pursuant to s.82 Trade Practices Act 1974 (Cth) for misleading and deceptive conduct in contravention of s.52 Trade Practices Act 1974 (Cth) – where the appellant claimed damages against the second respondent for being "a person involved in the contravention" in terms of s.75B of that Act – whether the settlement of the floating slab was "undue" – whether the first respondent's communication of the Form 15 was misleading conduct in contravention of s.52 Trade Practices Act 1974 – whether the second respondent possessed the knowledge required to render him liable as a party to the first respondent's contravention.

Leonards Pharmacy Pty Ltd v Double Up 888 Pty Ltd [2018] NSWSC 974
TRADE AND COMMERCE – contract for sale of a pharmacy – whether purchaser entitled to rescind – whether purchaser discharged obligation to do all things and make all applications and returns necessary to obtain approval under s.90 of the National Health Act 1953 (Cth) – whether purchaser used best endeavours to ensure that application was determined expeditiously – whether vendor entitled to forfeit deposit. TRADE AND COMMERCE – misleading and deceptive conduct – whether vendor made positive representations that he was not aware of an application for a second pharmacy in Coonamble – whether vendor remained silent as to his knowledge.

Murati v Belma Furniture Pty Ltd (Civil Claims) [2018] VCAT 961
Retail sale of furniture – misleading and deceptive conduct – breach of consumer guarantees – Australian Consumer Law , sections 18, 56, 57 and 263.

Legislation

Commonwealth

Competition and Consumer (Airservices Australia Prices Surveillance) Declaration 2018
09/07/2018 - This declaration requires Airservices Australia to notify the ACCC before increasing the price of services relating to terminal navigation, airport firefighting and rescue, en route air route and airway facilities, and safety regulatory and other safety related activities.

Therapeutic Goods Advertising Code 2018
29/06/2018 - This instrument sets out the requirements for the advertising of medicines, medical devices and other therapeutic goods, and includes information both about statements which are required to be included in advertising material, and statements, representations or implications which must not be included in such advertising.

Therapeutic Goods Information (Outcomes of Advertising Complaints Investigations) Specification 2018
28/06/2018 - This instrument is made by the Minister under subsection 61(5D) of the Act, and specifies the kinds of therapeutic goods information that the Secretary may release to the public under subsection 61(5C) of the Act regarding advertising complaint outcomes.

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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