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).
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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).
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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).
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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).
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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).
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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).
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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).
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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).
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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).
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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).
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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).
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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.