Australia: Inside track: Competition and Consumer Law - In the media, practice & regulation, and cases

Last Updated: 1 July 2019
Article by Howard Rapke

Most Read Contributor in Australia, July 2019

In the media

ACCC releases draft guidelines on repeal of subsection 51(3) of the CCA
The ACCC has released draft guidelines on the repeal of subsection 51(3) of the Competition and Consumer Act 2010 (Cth) (CCA) for consultation. The guidelines also provide examples of conduct that the ACCC would now consider likely or unlikely to breach the anti-competitive conduct provisions of the CCA (21 June 2019). More...

NBN Co set to issue wholesale pricing review paper featured
The NBN Co, the company rolling out Australia's national broadband network, is set to issue a wholesale pricing review to a number of telecommunications providers on Thursday in a bid to quell disquiet in the industry (20 June 2019). More...

CATO chairman takes aim at "deceptive and misleading" advertising by industry disruptors
In his address to members, Bunnik hit out at the proliferation of travel packages now being advertised with disingenuous discounts by high-profile travel industry disruptors, saying it undermines the credibility of the industry and diminishes retail travel agent revenue as consumers are lured by misleading pricing claims (19 June 2019). More...

Jump Swim in court for alleged misleading conduct
The ACCC has instituted proceedings against franchisor Jump Loops Pty Ltd and its parent company Swim Loops Holdings Pty Ltd (collectively Jump Swim) in the Federal Court, alleging that it made false, misleading or deceptive statements about Jump Swim School franchises, in breach of the Australian Consumer Law (18 June 2019). More...

Guide for energy retailers on new Retail Code
Energy retailers in South East Queensland, New South Wales and South Australia must comply with obligations under a new Electricity Retail Code from July 1 this year, including by advertising electricity plans in a way that makes it easier for consumers to compare prices and offers (18 June 2019). More...

TGA guidelines on 'natural' claims in therapeutic goods advertising
The TGA has indicated that the published guidance is more streamlined than the versions provided for consultation and is broadly consistent with the ACCC's guidelines about the use of natural claims in relation to food advertising. The Code requires that any claims made in therapeutic goods advertising must be valid, accurate, truthful, balanced and not misleading or likely to mislead (11 June 2019). More...

Dover case arising from banking royal commission hits court
The first trial arising from the banking royal commission has wrapped up, with an already shuttered financial planner accused of misleading and deceptive conduct (13 June 2019). More...

Online lingerie seller fails to deliver
A Coomera online retailer was fined $8,000 and ordered to pay more than $1,600 in compensation in the Southport Magistrates Court (11 June 2019) after being found guilty of three counts of failing to supply goods and four counts of making false or misleading representations under the Australian Consumer Law (ACL) (11 June 2019). More...

Practice and Regulation

ACCC draft guidelines on repeal of subsection 51(3) of the CCA
The draft guidelines outline the ACCC's approach to enforcing the CCA following the repeal, where certain conduct involving intellectual property rights was exempt from certain parts of the competition law, from 13 September 2019. Comments or suggestions on the draft guidelines close on 19 July 2019 via the ACCC consultation hub (21 June 2019).

Guide to the electricity retail code
Australian Competition and Consumer Commission: 18 June 2019
The ACCC promotes, monitors and enforces compliance with the Competition and Consumer (Industry Code—Electricity Retail) Regulations 2019 (the Code). As part of this role, the ACCC has published this guide for electricity retailers. The code comes into force on 1 July 2019.

TGA: Therapeutic goods advertising: Ensuring 'natural' claims are not misleading
11 June 2019 - Guidance on how advertisers can use terms such as 'natural' without misleading consumers.

TGA: Using 'natural' claims when advertising to the public
11 June 2019 - Reasons for releasing guidance and how it was developed

ACCC Consultation: Wine grape market study - June interim report
The ACCC is seeking feedback on the interim report by 28 June 2019 and expects to release a final report in September 2019. The interim report is available at.


Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Appeal dismissed with costs.
Trade practices – Consumer protection – Unconscionable conduct – Where s 12CB(1) of Australian Securities and Investments Commission Act 2001 (Cth) relevantly prohibited "unconscionable" conduct in trade or commerce in connection with supply or possible supply of financial services – Where respondent provided "book-up" credit to Anangu customers of general store – Where book-up credit allowed deferral of whole or part of payment for goods subject to respondent retaining customer's debit card and personal identification number – Where respondent used debit card to withdraw whole or nearly whole of wages or Centrelink payments shortly after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate and often illegible – Where customers vulnerable due to remoteness, limitations on education, impoverishment and low levels of financial literacy – Where book-up system "tied" Anangu customers to general store – Where customers had understanding of basic elements of book-up system – Where withdrawals authorised by customers – Where customers generally supportive of book-up and respondent's business – Where book-up protected customers from cultural practices requiring sharing of resources with certain categories of kin – Where book-up ameliorated effects of "boom and bust" cycle of expenditure and allowed purchase of food between pay days – Whether respondent's conduct unconscionable within meaning of s 12CB(1) of Act.

Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd [2019] FCA
TRADE MARKS — where the applicants seek relief for trade mark infringement — whether the first respondent contravened s 120(1) of the Trade Marks Act 1995 (Cth) by using a mark that is deceptively similar to the applicants' registered trade marks — consideration of the principles relevant to deceptive similarity in relation to a word mark — whether the use of a common surname would lead customers to have cause to wonder about the applicants' products and the respondents' products originating from the same source — whether it is necessary to consider surrounding circumstances — whether deceptive similarity is to be assessed having regard only to the registered owner's actual use of its mark — whether the first respondent used its own name in good faith pursuant to s 122(1)(a)(i) of the Trade Marks Act — whether the respondents knew or understood that the use of the first respondent's own name may well cause confusion
CONSUMER LAW — where the applicants allege contraventions of ss 18 and 29(1)(h) of the Australian Consumer Law — whether the first respondent engaged in conduct that is misleading or deceptive, or which is likely to mislead or deceive — whether the first respondent represented that it and the applicants are the same person — whether the first respondent represented that its wines were produced by or at the direction of the applicants — whether the first respondent represented that its wines have the sponsorship or approval of, or an affiliation with the applicants — consideration of the difference between confusion and error — where the applicants adduced evidence of confusion by customers and consumers
TORTS — where the applicants seek relief for the tort of passing off — consideration of the principles relevant to passing off — whether the applicants have established a reputation in connection with wines — whether the respondents represented that their wines were associated with, or approved or endorsed by the applicants
ESTOPPEL — whether the applicants are estopped from asserting trade mark infringement and contraventions of s 18 of the Australian Consumer Law — consideration of the principles relevant to promissory estoppel — whether the applicants made representations on which the respondents relied — whether such reliance was reasonable — whether the respondents suffered detriment in reliance on the representations

Australian Competition and Consumer Commission v Campbell [2019] FCA 886
PRACTICE AND PROCEDURE – ex parte application by ACCC for freezing orders – alleged contraventions of the Australian Consumer Law – whether freezing orders should be made – whether ancillary disclosure orders should be made – whether ACCC required to provide undertaking as to damages - Competition and Consumer Act 2010 (Cth) s 137F

Australian Securities and Investment Commission v Whitebox Trading Pty Ltd (No 7) [2019] FCA 849
CORPORATIONS – securities index arbitrage trading – alleged market manipulation – whether the placement of certain orders for XJO Securities, including certain order cancellations and reductions, in the Pre-Open Phase were made for the purpose of affecting Opening Prices in the Opening Single Price Auction of the market conducted by the Australian Securities Exchange – whether defendants were trading with the intention of creating or causing the creation of a false or misleading appearance with respect to the market for and/or price for trading in XJO Securities under s 1041B(1)(b) of the Corporations Act 2001 (Cth) – whether defendants were trading with the intention of creating an artificial price for trading in XJO Securities under s 1041A(1)(c) of the Corporations Act 2001 (Cth)

PPK Willoughby Pty Ltd v Baird [2019] NSWSC 705
EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence and misleading and deceptive conduct – where evidence previously excluded from plaintiff's claim for negligence – whether evidence should be excluded from plaintiff's claim for misleading and deceptive conduct – whether s 5D(3) of the Civil Liability Act extends to evidence in a claim for misleading and deceptive conduct

Keys Consulting Pty Ltd v CAT Enterprises Pty Ltd [2019] VSCA 136
CONTRACT – Misleading or deceptive conduct – Sale of business – Whether representations induced entry into agreement – Measure of damages – Whether judge erred in valuing business at nil – Whether judge erred in deducting post-sale benefit – Onus on purchaser to establish value at date of sale – Appeal allowed – Damages award set aside – Australian Consumer Law (Competition and Consumer Act 2010, sch 2) ss 18, 236, 237, 243.

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