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.

Cases

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.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions