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.
Cases
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.