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

Last Updated: 11 July 2019
Most Read Contributor in Australia, July 2019

In the media

Samsung in court for misleading phone water resistance advertisements
The ACCC has instituted proceedings in the Federal Court against Samsung Electronics Australia Pty Ltd (Samsung) alleging it made false, misleading and deceptive representations in advertising the water resistance of various 'Galaxy' branded mobile phones (04 July 2019). More...

Optus customers urged to check for refunds
Optus customers are encouraged to check if they have received an email or SMS from Optus about a refund they may be entitled to in relation to Optus's Direct Carrier Billing (DCB) third-party billing service. In February 2019, following ACCC action, the Federal Court ordered Optus to pay penalties of $10 million for making false or misleading representations about charges for digital content (03 July 2019). More...

Mitsubishi ordered to repay customer over 'misleading' fuel label
A car giant has been ordered to repay a customer who fought back over a "misleading" fuel label attached to his new four-wheel drive. VCAT ordered the dealer to repay the customer $39,500, although Mitsubishi, which is handling the matter on Berwick Mitsubishi's behalf, is now appealing the decision in the Supreme Court (01 July 2019). More...

ACCC to enforce new rules for electricity retailers
The ACCC will be enforcing new rules that will benefit most electricity consumers by both limiting standing offer electricity prices and imposing new advertising rules on electricity providers under the new Electricity Retail Code (01 July 2019). More...

$2.3M penalty for fake Indigenous Australian art
The Federal Court has ordered Birubi Art Pty Ltd (in liquidation) to pay $2.3 million for making false or misleading representations about products it sold in breach of the Australian Consumer Law. In October 2018, following action by the ACCC, the Federal Court found that Birubi falsely claimed that products it sold were hand painted by Australian Aboriginal persons and made in Australia when that was not true (27 June 2019). More...

Red Rich Fruits amends contracts with growers after ACCC concerns
A trader in apples, pears and other fresh fruits has agreed to change its horticulture produce agreements with growers after the ACCC raised concerns the agreements contained unfair contract terms, and terms which did not comply with the Horticulture Code of Conduct (25 June 2019). More...

ASIC takes Former Murray Goulburn execs to court
The corporate watchdog has taken former executives of dairy group Murray Goulburn to the Federal Court over alleged breaches of the Corporations Act, and further alleges that Helou engaged in misleading or deceptive conduct by approving the February 2016 announcement (25 June 2019). More...

Practice and Regulation

Annual Federal Courts and Tribunals Fee increases from 1 July 2019
The fees payable in the Federal Courts and Tribunals will increase from 1 July 2019 to reflect changes to the consumer price index over the past financial year. This is an automatic increase provided by the relevant fees regulations. A copy of a notice published in the Government Notices Gazette on 4 June 2019 setting out the new fees payable here.

Cases

Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039
CONSUMER LAW – representations of "biodegradable and compostable" made on labelling of disposable dish and cutlery products sold by respondent – identification of nature of representations – whether representations were as to "future matters" within meaning of s 4 of the Australian Consumer Law – consideration of meanings of "future matter" and "reasonable grounds" in s 4 – whether respondent had reasonable grounds for representations – application dismissed
CONSUMER LAW – misleading or deceptive conduct – whether representations of "biodegradable and compostable" contravened ss 18, 29 or 33 of the Australian Consumer Law – consideration of factors relevant to identifying "ordinary and reasonable" consumer – application dismissed. Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (Cth) ss 4, 18, 29, 33

Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd [2019] FCA 992
CONSUMER LAW – misleading and deceptive conduct – where the applicant alleges contraventions of ss 18, 29(1) and 33 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) arising out of the respondent's promotion of flushable wipes – where the applicant alleges that flushable wipes caused harm to household and municipal sewerage systems – whether representations were with respect to a future matter pursuant to s 4 of the ACL – whether flushability representation was false, misleading or deceptive – flushability representation was not false, misleading or deceptive
Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) ss 4, 18, 29(1), 33
Evidence Act 1995 (Cth) s 140

Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996
CONSUMER LAW – contraventions of ss 29(1)(a), 33, Australian Consumer Law (ACL) – where respondent wholesaler engaged in conduct likely or liable to mislead or deceive potential purchasers by implying that five product lines were hand-painted by Australian Aboriginal persons and were made in Australia – consideration of principles for assessing appropriate pecuniary penalties where respondent engaged in a multitude of overlapping contraventions – consideration of the primacy of deterrence in setting an appropriate penalty – where penalties still have general deterrent effect despite the respondent being in liquidation – where public importance in sending a strong message of deterrence is heightened given the economic, social and cultural harms to Indigenous Australians which may flow from misrepresentations regarding the provenance of art and souvenirs as Australian Indigenous art and artefacts – total pecuniary penalties of $2.3 million imposed
Australian Consumer Law ss 29(1)(a), 33, 224
Resale Royalty Right for Visual Artists Act 2009 (Cth)

Mottershead Investments Pty Ltd v Aircraft Support Industries Engineering Pty Ltd (in Liquidation) & Ors [2019] FCCA 1375
CONSUMER LAW – Representations as to future conduct – promise to pay outstanding invoices – whether false or misleading – whether unconscionable conduct – whether statements relied upon – whether chose in action assigned.
CONTRACT – Outstanding invoices – contractual warranty to pay – breach of warranty – assignment of debt.
Australian Consumer Law 2010 (Cth)
The second respondent is to pay the applicant the sum of $209,000 within 14 days.

Balls & Tackles Pty Limited v International Management Group of America Pty Ltd [2019] NSWDC 290
TRADE PRACTICES – misleading and deceptive conduct – whether representations made – reliance – authority to make representations – payment of bribes – unconscionable conduct – equitable compensation

Australia and New Zealand Banking Group Limited v James (No 3) [2019] NSWSC 832
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppressions of material fact – whether to set aside judgment by consent – whether misleading and deceptive conduct by plaintiff – discretionary considerations – whether defendant has arguable defence – delay – whether delay in advancing case of misleading and deceptive conduct disentitles defendant to relief MISLEADING AND DECEPTIVE CONDUCT – Australian Consumer Law – silence – whether reasonable expectation of being informed of information concerning activities of receivers – whether disclosure required by terms of guarantee – whether reasonable expectation of disclosure of other matters – reliance – whether defendant relied on absence of that information – whether knowledge of that information would have led defendant to not accept judgment by consent
CORPORATIONS – Receivers and managers – duties – s 420A of Corporations Act 2001 (Cth) – whether arguable defence based on this provision – scope and function of s 420A – rights of guarantors – standard imposed on receivers – exclusion by contract.

Collective Concepts Pty Ltd v SMC Gasworks Pty Ltd [2019] NSWSC 789
CIVIL PROCEDURE – Preliminary discovery – to determine whether to commence proceedings – to identify potential cause of action for breach of warranty or statutory misleading and deceptive conduct - Australian Consumer Law

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.

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