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

Last Updated: 1 September 2019
Most Read Contributor in Australia, October 2019

In the media

More than half of us have lost money due to financial services misconduct: study
The most common problems cited in the survey are "inappropriate but not illegal" issues such as high fees, being offered credit cards or increases to credit limits when not requested, poor or misleading information and being charged for services that were never received (19 August 2019). More...

Delivering a fair and competitive car retailing sector
The Morrison Government will reform the new car retailing sector, to make the system fairer for consumers, dealers and manufacturers. Minister for Industry, Science and Technology Karen Andrews said a range of reforms to automotive franchising arrangements will be considered, after a recent public consultation (14 August 2019). More...

Europcar to pay $350,000 penalty for excessive card payment surcharges
The Federal Court has ordered CLA Trading Pty Ltd (trading as Europcar) to pay $350,000 in penalties for charging excessive credit and debit card payment surcharges in breach of the Competition and Consumer Act 2010. Eurpocar admitted that, between July and August 2017, Europcar charged Visa and MasterCard credit users fees that were higher than Europcar's costs to accept payments from those credit cards (14 August 2019). More...

Bargaining imbalance between media and digital platforms must be addressed
In a speech reflecting on the recommendations in the final report of the ACCC's Digital Platforms Inquiry, released last month, Mr Sims recommended an enforceable bargaining code administered by the ACMA to ensure that media businesses are treated fairly, reasonably and transparently by the large digital platforms (13 August 2019). More...

Inquiry into Murray-Darling Basin water markets commences
As a formal inquiry under the Competition and Consumer Act 2010, the ACCC will have access to compulsory information gathering powers that will enable a thorough examination of competition and transparency issues in the markets (13 August 2019). More...

Former financial advisor and consultant charged with dishonest conduct
Mark Damion Kawecki, of Frankston Victoria, has been charged with five counts of dishonest conduct. Mr Kawecki appeared before the Melbourne Magistrates Court. ASIC alleges that Mr Kawecki submitted applications for shares which contained false or misleading information about the beneficial holder of those shares and/or false or misleading information about the applicant's address (12 August 2019). More...

Preliminary concerns on Saputo buying cheese business
The ACCC has preliminary competition concerns about dairy company Saputo's proposed acquisition of the Tasmanian-based cheese business of competitor Lion Dairy & Drinks. Some farmers have told the ACCC that Lion has been offering competitive contract terms, including better prices for winter milk and an option to fix the price of a percentage of their milk for up to three years (08 August 2019). More...

400,000 NAB customers notified of 'junk insurance' class action
In one of the largest court-ordered notices in the nation's legal history, more than 400,000 Australians were notified they may be eligible for a class action accusing National Australia Bank (NAB) of selling "junk" consumer credit insurance (CCI). The NAB claim alleges the lender engaged in unconscionable, misleading and deceptive conduct (09 August 2019). More...

Former MG managing director Gary Helou may seek to put ASIC case on hold
Murray Goulburn's former managing director Gary Helou and chief financial officer Brad Hingle have until August 14 to lodge an application to have a case of misconduct proceedings brought against them by the corporate regulator put on hold (08 August 2019). More...

HealthEngine in court for allegedly misusing patient data and manipulating reviews
The ACCC has instituted proceedings in the Federal Court against online health booking platform HealthEngine Pty Ltd (HealthEngine) for misleading and deceptive conduct relating to the sharing of consumer information with insurance brokers and the publishing of patient reviews and ratings (08 August 2019). More...

Clean Energy Regulator investigation leads to jail for solar installer
A Brisbane plumber was sentenced on August 5 2019 to four and a half years in jail by the Brisbane District Court after pleading guilty to one charge of fraud and production of false and misleading documents that falsely claimed he had installed more than 400 solar heat pumps (07 August 2019). More...

Practice and regulation

Why privacy matters - concealed data practices and competition law
Katherine Kemp's new research paper. More...

Keeping up with the competition: global trend to demand response
Dan Cass; The Australia Institute: 06 August 2019
This paper outlines how the world's major electricity markets are opening up to demand response competition, which will benefit consumers with lower prices and help maintain reliability. More...

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.
See also ACCC media release on the final report.
Further details to follow on Digital Platforms page.


Australian Competition and Consumer Commission v CLA Trading Pty Ltd trading as Europcar [2019] FCA 1262
CONSUMER LAW – pecuniary penalties – admitted contraventions of s 55B(1) of the Competition and Consumer Act 2010 (Cth) – excessive payment surcharges imposed over period of months – course of conduct principle – appropriateness of agreed declarations and orders – principles relevant to appropriate penalty – knowledge of senior management – need for specific deterrence - Australian Securities and Investments Commission Act 2001 (Cth) ss 12BG, 12DA, 12DB; Competition and Consumer Act 2010 (Cth) ss 55B, 76; Crimes Act 1914 (Cth) s 4AA

Australian Securities and Investments Commission v Westpac Banking Corporation (Liability Trial) [2019] FCA 1244
CONSUMER LAW – alleged contraventions of s 128 of National Consumer Credit Protection Act 2009 (Cth) – where respondent used automated system for conditional approval of home loans – where respondent calculated proposed repayments with principal amortised over life of interest only loan – whether respondent made assessment of unsuitability – whether assessment of unsuitability requires direct comparison of declared living expenses against loan repayments – whether assessment of unsuitability requires assessment by reference to repayments due after interest only period
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG; National Consumer Credit Protection Act 2009 (Cth) ss 125, 128, 129, 130, 131, 132, 133

Elevate NSW Pty Ltd v Canada Bay Private Hospital Pty Ltd [2019] FCA 1248
CORPORATIONS – application to set aside a statutory demand under s 459H(1)(b) of the Corporations Act 2001 (Cth) – offsetting claims for misleading or deceptive conduct, conversion and detinue, and breaches of contract – whether the evidence of loss is sufficient to meet the threshold for establishing an offsetting claim
TRADE PRACTICES – claim of misleading or deceptive conduct by silence or failure to disclose – whether knowledge of the matter that has not been disclosed is necessary for the claim to be established
Competition and Consumer Act 2010 (Cth) sch 2 s 236; Corporations Act 2001 (Cth) ss 440D, 459G, 459H
Trade Practices Act 1974 (Cth) s 52; Private Health Facilities Regulation 2017 (NSW)

Australian Competition and Consumer Commission v Mitolo Group Pty Ltd [2019] FCA 1257
CONSUMER LAW – unfair contract terms– where respondents entered into small business contracts with potato growers - where ACCC alleged that certain terms of the contracts were 'unfair' within the meaning of s 24 of the Australian Consumer Law –where the first respondent entered into contracts with potato growers which did not specify a method or formula to determine the price to be paid to the grower or specify whether the price would be determined before or upon the delivery of the produce –where the ACCC alleged that the first respondent thereby contravened cll 12 and 32 of the Competition and Consumer (Industry Codes - Horticulture) Regulations 2017 - where respondents reached agreement with ACCC in relation to proposed declarations, injunctions, a pecuniary penalty and a compliance program - principles relevant to making agreed orders and declarations including as to the appropriate penalty – appropriateness of agreed declarations, injunctions, pecuniary penalty and compliance program
Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth)
Crimes Act 1914 (Cth); Competition and Consumer (Industry Codes – Horticulture) Regulations 2017
Trade Practices (Horticulture Code of Conduct) Regulations 2006

ACME Properties Pty Ltd v Perpetual Corporate Trust Limited as trustee for Braeside Trust [2019] FCA 1189
CONTRACT – intention to create contractual relations – offer to lease commercial premises – where offer document was signed by both parties – where offer document was expressed to be subject to formal approval of the landlord (to be given or withheld in its absolute discretion), and execution of all legal documentation by the landlord and tenant – whether the offer document constituted a binding agreement to lease
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18

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

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
Font Size:
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 (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

To Use 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.


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.


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