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.
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