Australia: Competition & Consumer Law News – 4 September 2018

Last Updated: 8 September 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

Small businesses need fairer contracts, stronger codes: ACCC
Unfair contract terms, misleading conduct and scams are some of the biggest issues affecting small businesses in Australia, according to the ACCC's latest Small Business in Focus report (30 August 2018). More... More...

4 ways the royal commission may change the superannuation sector
At least a dozen superannuation funds, the majority being bank-owned entities, may have committed misconduct or breached laws, according to the counsel assisting the royal commission's final submissions report, based on two-weeks of superannuation hearings held earlier this month (30 August 2018). More...

Franchisee rights denied in Husqvarna code breach
The ACCC took action over concerns Husqvarna's "dealership agreements" may have contravened provisions of the FCC, and consequently section 51ACB of the Competition and Consumer Act (CCA), and made misleading representations in breach of the Australian Consumer Law (ACL) (29 August 2018). More...

Sydney light rail: Businesses join class action to sue NSW Government for $40 million
More than 60 businesses have joined a class action seeking around $40 million in compensation over disruption caused by Sydney's light rail project, with a claim in the New South Wales Supreme Court for unnecessary nuisance and misleading conduct of the State Government (28 August 2018). More...

Lawyers recommend NAB and CBA face criminal charges over treatment of super customers
Lawyers for the banking royal commission have recommended the Commonwealth Bank and the National Australia Bank face criminal charges over their treatment of superannuation customers. Mr Hodge also recommended to Commissioner Kenneth Hayne QC that NAB face criminal charges for misleading and deceptive conduct because it wrongly charged fees to superannuation customers (25 August 2018). More...

Trivago hauled to court by ACCC for allegedly misleading customers
The Australian Competition and Consumer Commission (ACCC) has instituted proceedings in the Federal Court against trivago NV (Trivago), alleging that the accommodation search engine site misled customers over price. It is alleged by the ACCC that Trivago made misleading pricing representations in its television advertising and on its website from at least December 2013 that breached Australian Consumer Law (23 August 2018). More...

Trivago misleads consumers into believing they get the 'best price', ACCC alleges
Hotel comparison website Trivago deceived consumers into believing it was an "impartial and objective" aggregator that helped them find the cheapest hotel prices, the Australian Competition and Consumer Commission (ACCC) alleges (23 August 2018). More... More...

Heinz ordered to pay $2.25 million penalty over misleading health claim
The Federal Court of Australia has ordered H.J. Heinz Company Australia Ltd (Heinz) to pay penalties totalling $2.25 million for making a misleading health claim that its Little Kids Shredz products were beneficial for young children (24 August 2018). More...

Consumer law penalties set to increase
The ACCC welcomes legislation that has passed Federal Parliament to increase maximum financial penalties under the Australian Consumer Law (ACL). Companies will now face more serious financial consequences for breaching consumer law that align with competition law breaches (23 August 2018). More...

Daiso franchises fined $355,000 over thousands of unsafe products
The operator of six Daiso franchise stores in Melbourne has been fined $355,000 by the Federal Court of Australia for selling thousands of products that did not meet Australian product safety standards. The court also found Origo engaged in misleading and deceptive conduct in April 2011 by stocking sunscreen products that did comply with the correct labelling and advertising requirements for such products (21 August 2018). More...

New powers for the ACCC in relation to energy
The Prime Minister has announced it will implement some of the proposals contained in the ACCC's market inquiry into retail electricity prices and supply, published last month. The ACCC and the AER will also be provided with $31.9 million in additional funding to monitor the electricity market and pricing and the ACCC will be given 'significant new powers so the ACCC can step in where there has been an abuse or misuse of market power' (20 August 2018). More... More...

In practice and courts

Tougher penalties for breaches of consumer law pass Federal Parliament
A new Bill, which has recently passed the Commonwealth Parliament, is set to increase maximum financial penalties under the Australian Consumer Law (the "ACL") (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). The new legislation been welcomed by the ACCC. The Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 (Cth) passed the Senate on 23 August 2018, and is currently awaiting assent. More...

ACCC Small business in focus - 1 January to 30 June 2018
This twice-yearly report provides a summary of ACCC activities in the small business, franchising and agriculture sectors. Unfair contract terms, misleading conduct and scams are some of the biggest issues affecting small businesses in Australia (28 August 2018). More...

Collective bargaining class exemption: Discussion paper
The ACCC is seeking feedback in relation to a 'class exemption' to 'allow small businesses, agribusinesses and franchisees to negotiate collectively with their customers or suppliers, including franchisors. If granted, it would be the first class exemption granted by the ACCC under new powers it acquired as part of the Harper Reforms in November last year. Feedback on the draft discussion paper is invited until 21 September. More...

Cases

Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286
CONSUMER LAW – pecuniary penalty for contraventions of the Australian Consumer Law by the making of false or misleading representations – appropriate application of the course of conduct principle – aggregate of penalties where multiple contraventions occurred – whether a corrective publication order is necessary given length of time since contraventions occurred – whether an order for a compliance program is appropriate.
COSTS – application for party and party costs by Applicant – apportionment of costs not appropriate given that the claims on which ACCC did not succeed involved similar factual enquiries to that on which it did succeed – orders as to costs when Applicant has acted in public interest in initiating proceedings.
Australian Consumer Law ss 18, 29(1)(g), 224. 246
Competition and Consumer Act 2010 (Cth) s 155
Trade Practices Act 1974 (Cth) s 96(3)

Australian Competition and Consumer Commission v Domain Name Corp Pty Ltd [2018] FCA 1269
CONSUMER LAW – misleading or deceptive conduct – respondents sent unsolicited notices to businesses offering registration of a domain name substantially equivalent to their existing domain name where the parties filed a Statement of Agreed Facts and Admissions jointly – where the parties agreed to the orders as to the pecuniary penalties, injunctions and disqualification orders to be imposed on the respondents – where the parties disagreed as to the declaratory orders to be imposed – appropriateness of the Court endorsing the agreed upon orders – whether the Court should make the declaratory relief sought by the ACCC, but opposed by the respondent.

Industrial Galvanizers Corporation Pty Ltd v Safe Direction Pty Ltd [2018] FCA 1192
PATENTS – priority date – external fair basis – whether patent date deferred by subsequent amendment – held no real and reasonably clear disclosure in unamended specification of what was claimed as a result of the amendment.
PATENTS – internal fair basis – whether claimed invention is fairly based on disclosure in the specification – held claims of Final patent fairly based on the specification.
PATENTS – personal liability of director for infringement by company – joint tortfeasor – meaning of "authorise" under s 13 of the Patents Act – held no joint tortfeasorship or authorisation.
CONSUMER LAW – misleading or deceptive conduct in contravention of the Australian Consumer Law – whether offer for sale, sale, distribution, advertisement, supply, exhibition and promotion of product constitutes a representation in trade or commerce that the purchaser will have a right to use the product – held no contravention of the Australian Consumer Law. Competition and Consumer Act 2010 (Cth), Schedule 2, s 18.

Reckitt Benckiser (Australia) Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2018] FCAFC 138
CONSUMER LAW – comparative advertising of pain relief products in the treatment of common headaches, including tension-type headaches – whether advertising was misleading or deceptive, or likely to mislead or deceive – whether advertising made false representations.
Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)), ss 4, 18, 29.

Targus Group (UK) v Targus Australia (No 2) [2018] NSWSC 1322
COMMERCE – application for interlocutory injunctive relief – allegations of breach of contract and unconscionable conduct – evidence to date demonstrates that there are various "serious" questions to be tried – considerations of balance of convenience.
EQUITY – whether applicant or its shareholder who has promoted the cross-claim should give undertaking as to damages – relief to be granted in part subject to that shareholder giving the usual undertaking.

Legislation

Treasury Laws Amendment (2018 Measures No. 3) Bill 2018
Finally passed both Houses 23 August 2018
Amends the Competition and Consumer Act 2010 to: align the maximum penalties under the Australian Consumer Law (ACL) with the maximum penalties under the competition provisions of the Act; amend the ACL to provide for a safe harbour defence to an allegation of false, misleading or deceptive conduct where a person has complied with an information standard about free range eggs; and ensure the confidentiality of supplier information obtained by the Australian Energy Regulator in performing its wholesale market monitoring and reporting functions.

Telecommunications Legislation Amendment (Competition and Consumer) Bill 2018
Senate Second reading debate 23 August 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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