Australia: Competition & Consumer Law News – 21 August 2018

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

Most Read Contributor in Australia, September 2018

In the media

First financial penalty under 2017 Horticulture Code
A Sydney fruit and vegetable wholesaler is the first business to pay a $10,500 infringement notice for an alleged breach of the Horticulture Code, which was updated in 2017 to include penalties for non-compliance (17 August 2018). More...

Criminal cartel charges laid against CFMMEU and its ACT branch secretary
The CFMMEU and Mr O'Mara are each charged with attempting to induce suppliers of steel fixing services and scaffolding services to reach cartel contracts, arrangements or understandings containing cartel provisions in relation to services provided to builders in the ACT in 2012 to 2013 (16 August 2018). More...

AFL & NRL clubs fix refunds and returns policies
Twenty-one Australian Football League (AFL) and National Rugby League (NRL) clubs have made changes to their returns and refunds policies in relation to merchandise sales following an investigation by the ACCC. From at least April 2018, 21 AFL and NRL clubs made claims in their returns and refunds policies which the ACCC considered were misleading, including that items must be unworn, purchased at full price and returned within a specified timeframe to qualify for a remedy (16 August 2018). More...

Former energy exec slams power price gouging
Adrian Merrick, former group executive manager of retail at EnergyAustralia, said the "gentailers" - power generators and retailers - were reaping record profits from the high wholesale price of electricity, when the underlying cost of actually producing that energy hadn't changed (15 August 2018). More...

ACCC threatens cartel charges for farmers collectively culling piglets to cut costs
The Australian Competition and Consumer Commission (ACCC) is threatening pig producers with cartel charges if they collectively cull piglets to reduce pork supply (15 August 2018). More...

Court orders penalties of $5.5m against Palram and Ampelite for exclusive dealing
The Federal Court of Australia has declared (by consent) that Palram Australia and Ampelite Australia engaged in exclusive dealing having the purpose of substantially lessening competition. The Court has ordered payment of pecuniary penalties totalling $5.5 million and has ordered implementation of a compliance training program (13 August 2018). More...

Aurizon prevented from closing Queensland intermodal business
The Federal Court has ordered that Aurizon must continue operating its Queensland intermodal business while the ACCC's case against Pacific National and Aurizon is heard and determined. The ACCC instituted proceedings against Pacific National and Aurizon, and their related entities, for allegedly reaching an understanding about Aurizon's intermodal business that had the purpose and/or would be likely to have the effect of substantially lessening competition in the supply of intermodal and steel rail linehaul services (13 August 2018). More...

Christou and Aecom in court over building's green claims
It was designed with the highest of green ratings in mind, but the City of Canning in Perth is taking design firm Christou and consultant Aecom to court over alleged "misleading or deceptive" conduct regarding the $37 million Cannington Leisureplex's ecologically sustainable design (14 August 2018). More...

Fears drought-stricken farmers are being ripped off by suppliers
There are growing fears drought-stricken farmers, forced to buy expensive fodder and grain to feed their stock, are being ripped off. In some cases, people have been buying hay bales for $100 each and reselling them for $400, adding extra pressure to those who are already struggling to grow their crops. There are now growing calls for the ACCC to step in and investigate the alleged price gouging (09 August 2018). More...

BHP settles US class action over Samarco dam failure for $67 million
Mining giant BHP has agreed to settle a US class action claim relating to the Samarco dam failure of 2015, which triggered Brazil's worst environmental disaster, and agreed to pay the plaintiffs $US50 million ($67.3 million). The Australian class action alleges BHP breached its continuous disclosure obligations under Australian law, and also alleges BHP engaged in misleading and deceptive conduct (09 August 2018). More...

High Court refuses leave for electrical cable cartel appeal
The High Court has dismissed a special leave application by electrical cable manufacturer Prysmian Cavi E Sistemi S.R.L. (Prysmian), following a decision of the Full Federal Court that upheld the trial judge's finding that the company had engaged in cartel conduct in the supply of high voltage land cables (08 August 2018). More...

ACCC commences inquiry into regulation of wholesale mobile voice and SMS services
ACCC Commissioner Cristina Cifuentes said regulation of wholesale mobile termination has, in the past, helped to lower retail prices for mobile services for the benefit of consumers. This inquiry will consider whether continued regulation is needed to deliver this result (7 August 2018). More...

ACCC takes action against Seednet over barley performance claims
The ACCC has instituted proceedings in the Federal Court against Landmark Operations Limited (trading as Seednet) for allegedly making false, misleading and deceptive claims in a fact sheet for its barley variety known as 'Compass'. The ACCC also alleges that Seednet misrepresented to farmers that Compass had higher resistance to a disease known as 'leaf rust' than it actually did in NSW, Victoria, Queensland, SA and WA (06 August 2018). More...


Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170
COMPETITION – collusive arrangement – exclusive dealing – second respondent admitted to contraventions of s.47 of the Competition and Consumer Act 2010 (Cth) – sixth respondent admitted to being directly and knowingly concerned in third respondent's contraventions within meaning of s.75B(1)(c) of the Act – enforcement and remedies – application for agreed declarations, pecuniary penalties, non-punitive orders, and disqualification order – whether proposed declarations, penalties and orders appropriate – consideration of principles – proposed declarations and orders made and penalties imposed.
PRACTICE AND PROCEDURE – application for confidentiality orders protecting financial information pursuant to s.37AF of the Federal Court Act 1976 (Cth) on basis of "commercial sensitivity" – consideration of principles – application refused where information not of continuing commercial significance.
Competition and Consumer Act 2010 (Cth) ss.47, 76, 86C, 86E; Federal Court Act 1976 (Cth) ss.21, 37AE, 37AF, 37AG, 37AJ; Trade Practices Act 1974 (Cth) ss.47, 76, 86C, 86E).

Australian Competition and Consumer Commission v Oakmoore Pty Ltd [2018] FCA 1169
COMPETITION – collusive arrangement – exclusive dealing – third respondent admitted to contraventions of ss.45 and 47 of the Competition and Consumer Act 2010 (Cth) – seventh respondent admitted to being directly and knowingly concerned in third respondent's contraventions within meaning of s.76(1)(e) of the Act – enforcement and remedies – application for agreed declarations, pecuniary penalties and non-punitive orders – whether proposed declarations, penalties and orders appropriate – consideration of principles – proposed declarations and orders made and penalties imposed.

Butler and Commonwealth Scientific and Industrial Research Organisation (Freedom of information) [2018] AATA 2668
FREEDOM OF INFORMATION – where Applicant seeks documents from the CSIRO regarding testing of fire alarms – whether documents are exempted from the Freedom of Information Act 1982 (Cth) – section 7 – whether request was in respect of documents in respect of the CSIRO's commercial activities – commercial activities – whether activities undertaken on a commercial basis – whether the CSIRO was in competition with others – the CSIRO was not in competition with others – whether it was reasonably expected in the foreseeable future that the CSIRO would be in competition with others – the documents are exempted – decision under review affirmed.
Freedom of Information Act 1982 (Cth), ss.3, 7, 11, 24, 24AA, 24AB, 55K; Science and Industry Research Act 1949 (Cth), ss.9, 9AA.


Telecommunications Legislation Amendment (Competition and Consumer) Bill 2018
Introduced with the Telecommunications (Regional Broadband Scheme) Charge Bill 2017, the bill amends the: Competition and Consumer Act 2010 and Telecommunications Act 1997 to: remove regulation of networks servicing small business customers; enable new superfast networks to operate on a functionally separated basis with the approval of the ACCC; enable the ACCC to exempt small start-up networks from separation regulation; provide that all services supplied on networks that are wholesale-only or functionally separated will be subject to clear non-discrimination obligations; amend the enforcement regime, including conferring additional powers on the ACCC. Also repeals four declarations. Senate Second reading debate 16 August 2018.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Robertson
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions