Australia: Competition & Consumer Law News – 25 July 2018

Last Updated: 26 July 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

ACCC alleges Pacific National and Aurizon reached an anti-competitive understanding
The ACCC has instituted proceedings against Pacific National and Aurizen alleging they reached an anti-competitive understanding in relation to Aurizon's multimodal business (19 July 2018). More...

'Loose change': Judge suggests Apple could recoup $9m penalty in minutes
A $9 million penalty imposed on Apple for deceiving Australian customers is "loose change" and unlikely to deter future misconduct, a Federal Court judge says. The found the tech giant misled at least 275 customers by telling them it was not obliged to fix a software fault if a third party had worked on their device (19 July 2018). More...

Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google's search engine
The European Commission has fined Google €4.34 billion for breaching EU antitrust rules. Since 2011, Google has imposed illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet search. These practices have denied rivals the chance to innovate and compete on the merits (18 July 2018). More...

Servcorp's business contract terms declared unfair
The Federal Court has declared by consent that 12 terms in standard form contracts used by two Servcorp Ltd subsidiaries (Servcorp Parramatta Pty Ltd and Servcorp Melbourne 18 Pty Ltd) (together Servcorp) are unfair and therefore void (13 July 2018). More...

ACCC: Companies behaving badly?
ACCC Chair Rod Sims delivered the Giblin Lecture in Tasmania, saying "companies appear to put immediate profit ahead of their customers either by engaging in misleading or unfair conduct, or even unconscionable conduct towards their customers, or they engage in cartel or other anti-competitive activity that raises prices for their customers" (13 July 2018). More...

ACCC institutes proceedings against Cryosite for alleged cartel conduct
The ACCC has instituted proceedings in the Federal Court against Cryosite Limited for alleged cartel conduct in relation to its entry into an asset sale agreement with Cell Care Australia Pty Ltd (Cell Care). In June 2017 Cryosite signed an agreement to sell its assets in its cord blood and tissue banking business to Cell Care. On signing the agreement, Cell Care made an upfront, non-refundable payment of $500,000 to Cryosite (12 July 2018). More...

Banks' treatment of farmers amounts to misconduct, royal commission hears
In a damning assessment of the sector, the counsel assisting the banking royal commission points to numerous failings of banks to act fairly, reasonably and ethically when dealing with struggling primary producers (06 July 2018). More...

In practice and courts

Home care - a guide to your consumer rights
Australian Competition and Consumer Commission: 13 July 2018
Occasionally problems can arise when receiving goods or using services. There are rights under the Aged Care law but the consumer law also includes protections that may help if things go wrong. More...

Restoring electricity affordability and Australia's competitive advantage
Australian Competition and Consumer Commission: 11 July 2018
This report finds that there is a serious electricity affordability problem for consumers and businesses. The report sets out 56 recommendations to reset the National Electricity Market, boost competition, reduce costs and improve consumer and business outcomes. More...

ACCC energy report detail
The ACCC has released its report on the retail electricity market, making a suite of recommendations to improve the position of consumers.
Nine recommendations relating to boosting competition in generation and retail markets are contained in Chapters 4-6 and include:
"preventing acquisitions or other arrangements resulting in a 'market participant owning, or controlling dispatch of, more than 20 per cent of generation capacity in any NEM region or across the NEM as a whole ...' providing the AER with 'powers to address behaviour which has the effect of manipulating the proper functioning of the wholesale market, together with the necessary investigation powers and appropriate remedies.'" More...

Speech: When and how to intervene in markets
ACCC Chair, Rod Sims, delivered a speech to the Australian Conference of Economists in Canberra focussing on the ACCC's approach to market intervention (12 July 2018). More...

Cases

Australian Competition and Consumer Commission v Servcorp Limited [2018] FCA 1044
CONSUMER LAW – unfair contract terms – where the parties are agreed that the relevant contracts were standard form contracts within the meaning of s 27 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL) and small business contracts within the meaning of s 23(4) of the ACL – where the parties are agreed that the contracts contained terms which created a significant imbalance in the parties' rights and obligations in favour of the second and third respondents and would cause detriment to the small business client if relied on by the second and third respondents – where the parties jointly submit that the relevant terms in the contract are unfair terms within the meaning of s 24(1) of the ACL – whether the Court should make the proposed declarations and orders – application allowed.
Competition and Consumer Act 2010 Cth) Sch 2 ss 23, 24, 25, 27
Federal Court of Australia Act 1976 (Cth) s 23
Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) Sch 1

Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033
PRIVATE INTERNATIONAL LAW – consideration of an interlocutory application for the grant of an antisuit or antiantisuit injunction in relation to proceedings commenced in the Circuit Court of Cook County Illinois.
Competition and Consumer Act 2010 (Cth), s 18 of the Act and ss 237, 243 of Schedule 2

Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd [2018] FCAFC 105
CONSUMER LAW – appeal – whether primary judge erred in finding packaging and get-up of appellant's cosmetic products misleadingly or deceptively similar to that of respondent's products – where different brand name present, but packaging otherwise similar – significance of lack of evidence of consumer confusion – characterisation of conduct as irrelevant third-party conduct – whether principle in Australian Woollen Mills Limited v FS Walton & Co Limited [1937] HCA 51; (1938) 58 CLR 641 properly applied – whether variants of products impermissibly conflated – appeal dismissed.

Kids Club Rozelle Pty Ltd v European Hire Cars Pty Ltd [2018] NSWSC 1115
CONSUMER LAW – misleading or deceptive conduct – whether lessor induced to enter into lease by representations as to lessee's financial capacity – representations held to be as to future intentions not representations as to financial capacity – whether lessor induced to enter into deed of surrender of lease by misrepresentations as to expenditure by lessee and as to existence of potential assignees of lease – some representations found to be misleading or deceptive – misleading or deceptive conduct held not to be a cause of entry into deed.

Cro Travel Pty Ltd v Australia Capital Financial Management Pty Ltd [2018] NSWCA 153
CONSUMER LAW – misleading or deceptive conduct – whether the appellant contravened s 18(1) of the Australian Consumer Law by issuing sea-carriage documents in respect of goods as agent for certain carriers despite having no authority and whilst other sea-carriage documents issued by carriers as principal in respect of the same goods were also in circulation – whether such conduct caused the respondent loss.
AGENCY – warranty of authority – whether the appellant's breach of warranty of authority caused the respondent loss – whether primary judgment could be supported on the basis that, if the documents had been issued.

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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