In the media
Court penalises potato wholesaler for breaching the
Horticulture Code and declares unfair contract terms void
In proceedings brought by the ACCC, the Federal Court has
declared that certain terms of contracts between Australia's
largest potato wholesaler, Mitolo Group Pty Ltd, and potato growers
entered into between December 2016 and February 2018 were unfair
contract terms and therefore void (02 August 2019).
More...
Repeal of Competition and Consumer Act section may
stymie small business
The IPA has expressed concerns about the upcoming repeal
of the Competition and Consumer Act 2010
(CCA) Section 51(3) and its potential impact on
small business. This repeal may have a direct impact on Section 45
of the CCA and as a result could stifle competition rather than
encourage it (02 August 2019).
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K-Line convicted of criminal cartel conduct and fined
$34.5 million
The Federal Court found K-Line engaged in a cartel with
other shipping companies in order to fix prices on the
transportation of cars, trucks, and buses to Australia between 2009
and 2012. K-Line's fine of $34.5 million is the largest ever
criminal fine imposed under the Competition and Consumer Act (02
August 2019).
More...
Big Warehouse pays penalty and compensates
customers
Online spare parts retailer Big Warehouse has paid a
$12,600 penalty after the ACCC issued an infringement notice
against the company for allegedly breaching the Australian Consumer
Law (ACL) by misleading a consumer about their
consumer guarantee rights in relation to spare parts they had
ordered (01 August 2019)
More...
Josh Frydenberg and Gladys Liu hit with High Court
challenge over election results
Federal Treasurer Josh Frydenberg and Liberal MP Gladys
Liu are facing a High Court challenge to their victories at this
year's federal election. Documents filed to the High Court,
sitting as the Court of Disputed Returns, claimed the posters
imitated official Australian Electoral Commission
(AEC) material and were therefore in breach of
electoral laws that make misleading and deceptive conduct illegal
(31 July 2019).
More...
Regulators approach to Crown scandal defies belief
In the absence of some coordinated response from
government and regulators, it will be Crown's shareholders
disaffected shareholders that are left to extract some financial
justice for themselves. The class action against Crown, in the
pipeline since 2017, is looking to establish that Crown engaged in
misleading or deceptive conduct and/or breached its continuous
disclosure obligations with respect to its operations in China (30
July 2019).
More...
The Australian government has dropped its big report
into big tech — here's what it means for Google and
Facebook
The Australian government has released the final report
from its 18-month investigation into Facebook and Google's
online dominance and the impact on other digital platforms. It is
now considering major changes including forcing Google to provide
its users alternatives to its Chrome internet browser and develop
new codes of conduct to police fake news and make sure they
negotiate fairly with traditional media companies (26 July 2019).
More...
ACCC appeals 'flushable' wipes decision
The ACCC has appealed the Federal Court's decision to
dismiss part of the ACCC's case against Kimberly-Clark. The
ACCC will argue on appeal that Kimberly-Clark's flushable
claims should have been found to be misleading because there was
evidence of the risk of harm these wipes posed to the sewerage
system, and that the trial judge was wrong to require evidence that
these particular wipes had caused actual harm (26 July 2019).
More...
Horse sales giant Inglis, ATC in $20 million legal feud
over tip
A secret dumping ground in the corner of Warwick Farm
racetrack, is central to a $20 million legal feud between horse
sales giant Inglis and the Australian Turf Club. The sales firm
believed it was being handed a site free of contamination after
diesel spills were identified and cleaned up, but says it has had
to resort to the courts in order to pursue damages for what it
believes was deceptive and misleading conduct (26 July 2019).
More...
Concerns about ANZ Terminals, GrainCorp deal
The ACCC has released a statement of issues raising
preliminary concerns about ANZ Terminals' proposed acquisition
of GrainCorp Liquid Terminals Australia Pty Ltd. "In some
locations, the acquisition will lead to ANZ Terminals becoming the
only storage provider for some liquid products. This loss of
competition could result in higher prices for customers, or lower
levels of service (24 July 2019).
More...
Market imbalance threatens future wine industry
growth
ACCC Deputy Chair Mick Keogh said the imbalance in
bargaining power results in growers accepting contracts with
sub-optimal terms, with limited ability to resolve disputes, and a
lack of pricing transparency is also hindering the effective
operation of the market. The ACCC is currently seeking feedback
from the industry on its interim report (22 July 2019).
More...
Practice and Regulation
Current Senate Inquiries July 2019 - Environment and
Communications Legislation Committee
Competition
and Consumer Amendment (Prevention of Exploitation of Indigenous
Cultural Expressions) Bill 2019
ACCC Digital Platforms Inquiry
The
report contains 23 recommendations, spanning competition law,
consumer protection, media regulation and privacy law, reflecting
the intersection of issues arising from the growth of digital
platforms. Before a detailed Government response is provided a
further consultation process will take place. It will run for 12
weeks, after which the Government intends to release its response
by the end of 2019. See the Treasurer's
media release. Please see also
ACCC media release on the final report. Further details to
follow on
Digital Platforms page.
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.
Cases
Pitcher Partners Consulting Pty Ltd v Neville's Bus
Service Pty Ltd [2019] FCAFC
119
TORTS – deceit – where appellants' advice
on a tender price contained an amortisation error – tender
won – appellants dishonestly concealed error and provided
false assurance that contract price included full subvention
allowed for by Transport for NSW – onus on respondent to
prove damages qualified when deliberate wrong of applicants caused
difficulties of proof – no Jones v Dunkel inference drawn
– no error in finding on the balance of probabilities that
respondent would have successfully renegotiated the contract had
the error been known – direct loss calculated as prejudice or
disadvantage suffered as a consequence of altering position under
fraudulent inducement - appropriate to rely on presumption against
wrongdoer – liar held to restore the innocent party to
position consistent with lie being true - appeal dismissed with
costs
CONSUMER LAW – dishonest conduct found to be seriously
misleading or deceptive conduct
Competition and Consumer Act 2010 (Cth) sch 2, ss 18, 236,
237; Trade Practices Act 1974 (Cth), s 87
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.