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...

Cases

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.

Legislation

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.

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