In the media
Government extends term of the ACCC Chair
The Coalition Government has extended Mr Rod Sims'
term as Chairman of the Australian Competition and Consumer
Commission (ACCC) until 1 August 2022 (25 October
2018).
More...
Ugg boot retailer pays penalties for alleged false
Australian-made representations
Ozwear Connection (Ozwear) has paid
penalties totalling $25,200 after the ACCC issued two infringement
notices for alleged false country of origin representations made
about its "Classic Ugg" footwear range (24 October 2018).
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Court finds that Birubi Art misled consumers over fake
Indigenous Australian art
The Federal Court has found that Birubi Art Pty Ltd
(Birubi) made false or misleading representations
that products it sold were made in Australia and hand painted by
Australian Aboriginal persons, in breach of the Australian Consumer
Law (24 October 2018).
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High Court refuses the ACCC special leave to appeal
Pfizer decision
The High Court has dismissed the ACCC's application
for special leave to appeal the Full Federal Court decision in a
case against Pfizer Australia Pty Ltd (Pfizer).
The Full Federal Court had found that Pfizer took advantage of its
substantial market power, but didn't accept the ACCC's
argument that Pfizer had acted for the purpose of substantially
lessening competition or deterring or preventing competitors from
competing (19 October 2018).
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AFT Pharmaceuticals has engaged in false and misleading
conduct in its Maxigesic advertising, the Federal Court has
found
The Court found that AFT, the manufacturer of the pain
relief brand Maxigesic, has engaged in false and misleading conduct
in contravention of the Australian Consumer Law when advertising
the product. The judge was satisfied that there was not an adequate
scientific foundation for the representations (19 October 2018). More...
Fair Trading watchdog launches court action against
plumbing group
The ACT Fair Trading Commissioner has launched Supreme
Court action against a Canberra plumbing group, alleging it
published misleading advertising. Commissioner David Snowden is
alleging that Your Local Plumbing Group Co Pty Ltd published
advertisements under different business names, creating the
impression the businesses were separate when in fact they were
linked (18 October 2018).
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High Court refuses Yazaki $46 million appeal
The High Court has dismissed a special leave application
by Japanese company Yazaki Corporation to appeal the Full Federal
Court's decision ordering Yazaki to pay $46 million in
penalties for cartel conduct. The High Court's decision not to
hear this appeal finalises this litigation and means the record
penalties of $46 million imposed on Yazaki stand (19 October 2018).
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ACCC Annual Report 2017-18
The ACCC secured nearly $170 million in penalties for
breaches of competition and consumer law in the 2017-18 financial
year, according to its latest annual report found
here. The ACCC continued to advocate higher penalties for
breaches of competition and consumer laws, and recorded its highest
penalty in the Yazaki cartel case of $46 million (18 October 2018).
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Kebab shop pair fight Westfield Carousel over
'misleading and deceptive conduct'
The directors of a takeaway kebab shop are suing the
owners of Westfield Carousel, claiming the centre's apparent
success was exaggerated during lease negotiations. In a recently
filed Supreme Court writ, the Kebabbque owners accuse Scentre
Group, which owns Westfield in Australia and New Zealand, of
"misleading and deceptive conduct" (18 October 2018).
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Bowen Hills motor dealer fined $6,500
A Brisbane motor dealer was ordered to pay almost $7,800
after charges were brought by the Office of Fair Trading
(OFT) for making false representations when
selling motor vehicles (17 October 2018).
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Optus misled customers over 'Direct Carrier
Billing' charges
The ACCC has commenced proceedings against Optus, alleging
it made false or misleading representations to consumers in
relation to its third-party billing service known as 'Direct
Carrier Billing' (DCB). Optus has admitted
that it made false or misleading representations in contravention
of the ASIC Act, and has agreed to apply jointly with the ACCC for
orders from the Federal Court (17 October 2018).
More...
ACCC identifies as fin services 'competition
champion'
A key parliamentary committee has accepted assurances from
the Australian Competition and Consumer Commission
(ACCC) that it can be the "competition
champion" for the financial system (16 October 2018).
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Stronger penalties required for franchising codes and
UCT laws
In his speech, Mick Keogh recognised the importance of
franchisees doing their due diligence including by seeking
independent advice before investing in a franchise. Mr Keogh also
updated delegates at the Convention about a potential 'class
exemption' to allow small businesses, including franchisees, to
negotiate collectively without having to seek the ACCC's
authorisation (14 October 2018).
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Cases
Australian Competition and Consumer Commission v Birubi Art
Pty Ltd [2018] FCA 1595
CONSUMER LAW – whether respondent wholesaler engaged
in conduct likely or liable to mislead or deceive potential
purchasers by implying that five product lines were hand painted,
or made, by an Aboriginal person and/or were made in Australia
– where the place of origin of the products, Indonesia, was
not disclosed– where all but one product line comprised
objects of cultural significance to Aboriginal peoples –
where no dispute as to the literal truth of express representations
– scope of the surrounding circumstances to be taken into
account in determining whether false or misleading representations
were made –whether surrounding circumstances includes the way
the products were presented in retail outlets by third parties, the
characteristics of other products for sale in those outlets, and
the products' price placement vis a vis other products - where
implied false or misleading representations upheld – finding
that all the products breached s 18 and subs 29(1)(a) and (k),
Australian Consumer Law – finding that boxed boomerangs,
didgeridoos and message stones breached s 33 of the Australian
Consumer Law.
CONSUMER LAW – discussion of the principles applicable to ss
19, 29 and 33 of the Australian Consumer Law – discussion of
the principles applicable to implied representations.
CONSUMER LAW – identification of class of persons to whom the
implied representations were made – where class included
international tourists, interstate tourists, and those seeking to
purchase a gift – where international tourists may have a low
degree of familiarity with the Aboriginal art and cultural
practices but would recognise the association between such objects
and their artwork, symbols and designs, on the one hand, and
Aboriginal art and culture, on the other hand.
EVIDENCE – whether contextual evidence of the retail
environment in which the products sold admissible – where
ACCC submitted context was confined to the products themselves,
together with the images and representations made on the products
and their packaging – where respondent had no control over
manner in which products presented by retailers – whether
evidence sufficient to establish the price differential and other
aspects of the retail environment relied upon by the respondent.
Competition and Consumer Act 2010 (Cth)
Reckitt Benckiser (Australia) Pty Limited v AFT
Pharmaceuticals (AU) Pty Limited [2018] FCA
1552
CONSUMER LAW – whether respondent's
advertisements for analgesic drug contravened Australian Consumer
Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)
– misleading or deceptive conduct – false or misleading
representations – conduct liable to mislead as to nature or
characteristics of goods – comparative advertising –
whether representations conveyed – whether adequate
scientific foundation for representations as to superiority of
respondent's analgesic over applicant's competing
analgesic, and over certain other analgesics – contraventions
found.
CONSUMER LAW – cross-claim – whether applicant's
advertisements for analgesic drug contravened Australian Consumer
Law – misleading or deceptive conduct – false or
misleading representations – conduct liable to mislead as to
nature or characteristics of goods – comparative advertising
– whether representations conveyed – whether adequate
scientific foundation for representation as to superiority of
applicant's analgesic over respondent's competing analgesic
– contravention found.
Australian Consumer Law (Sch 2 to the Competition and Consumer
Act 2010 (Cth) ss 18, 29(1), 33; Therapeutic Goods Act
1989 (Cth) s 25; Therapeutic Goods Regulations 1990 (Cth) Sch
4
Collier v Telstra Corporation Ltd
[2018] FCA 1569
PRACTICE AND PROCEDURE – application for leave to
appeal an interlocutory judgment pursuant to s 24(1A) of the
Federal Court of Australia Act 1976 (Cth) – FCC
Judge refused application to recuse himself on the basis of
apprehended bias – whether a fair-minded lay observer might
reasonably apprehend that the FCC Judge might not bring an
impartial and unprejudiced mind to the resolution of the dispute
– whether the FCC Judge was actually biased – leave to
appeal refused.
Competition and Consumer Act 2010 (Cth) Sch 2 Chs 2, 3,
Pts 3-5, 5-12, ss 18, 21, 22 ,24, 26, 27, 29, 34, 36, 37, 138A,
151, 156, 159, 168, 213, 228,
Hoser v Sportsbet Pty Ltd [2018] FCA
1557
TRADE MARKS – whether the pleaded television
commercial was a use by the respondent of "snake man" or
"snakeman" as a trade mark.
CONSUMER LAW – whether the pleaded television commercial
represented to adult consumers in Australia that the man depicted
in the advertisement was "the snakeman" – whether
the television commercial represented to adult consumers in
Australia that there was a connection or association between the
applicant and the respondent.
PRACTICE AND PROCEDURE – separate questions, pursuant to r
30.01 of the Federal Court Rules 2011 (Cth) – whether if the
answers to the three substantive questions was no, the originating
application (as amended) should be dismissed, in whole or in
part.
Competition and Consumer Act 2010 (Cth) Sch 2
('Australian Consumer Law') ss 18, 29;
Trade Marks Act 1995 (Cth) ss 7, 17, 20, 120; Federal
Court Rules 2011 (Cth) r 30.01.
Galati v Deans [2018] NSWSC
1600
CIVIL PROCEDURE – Application for security for costs
– Relevant considerations – Where cross-claimant
corporation admitted it would be unable to pay costs of
cross-defendant but undertakings provided by two individuals to be
responsible for costs of cross-defendant – Held not an
appropriate case for the exercise of the discretion to order
security – Application dismissed.
The claims: direct liability for engaging in misleading or
deceptive conduct by making representations that there would be no
additional payments or third-party payments payable and no
commission claimable or payable to any third party in conjunction
with the Nomination Agreement; and by making a false or misleading
representation concerning the price payable for land.
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.