In the media
Telco provider BVivid pays penalties and will release
consumers from contracts
The ACCC has accepted a court-enforceable undertaking from
telco provider BVivid Pty Ltd (BVivid) for making
telemarketing calls to consumers in areas transitioning to the NBN
that BVivid has admitted likely breached the Australian Consumer
Law (ACL). ACCC Commissioner
Sarah Court said BVivid's calls likely misled consumers and
gave them a false sense of urgency and need (10 September 2019).
More...
ASIC commences court action against Select AFSL over
phone sales of life insurance
ASIC alleges that Select, BlueInc and/or IMS, in their
dealings with 14 consumers, engaged in conduct in breach of
provisions of the Australian Securities and Investments
Commission Act 2001 (Cth), including for some or all of the
consumers: making false and/or misleading representations (09
September 2019).
More...
ACMA issues $88,200 in infringement notices under NBN
rules
The Australian Communications and Media Authority
(ACMA) has said failing to give consumers clear
and honest information about NBN plans is unacceptable and can lead
to misleading conduct as recently highlighted by the recent
Telecommunications Industry Ombudsman's report (06 September
2019).
More...
LG to pay $160,000 for misleading representations to two
consumers
The Full Court found that LG made misleading
representations to two consumers who believed they had purchased
faulty televisions, when it implied on phone calls they had no
rights other than those under LG's manufacturer's
warranties (06 September 2019).
More...
Cartel immunity policy strengthened, whistleblowing tool
launched
The updated immunity policy, which has been informed by
experience gathered during key criminal investigations, will come
into effect on 1 October 2019. It will continue to cover cartel
conduct such as price-fixing, market sharing, bid rigging and
customer allocation, and will clarify that the policy does not
cover anti-competitive concerted practices (06 September 2019).
More...
Class action against Radio Rentals leads to $29 million
settlement
Radio Rentals' controversial 'Rent, Buy, $1
Buy' scheme has come back to bite more than two years after a
class action filed by Maurice Blackburn Lawyers alleging
unconscionable conduct (03 September 2019).
More...
Medibank in court for alleged misrepresentations to
members about benefits
The ACCC has instituted proceedings in the Federal Court
against Medibank Private Limited trading as 'ahm Health
Insurance' (Medibank), alleging that Medibank made false
representations about benefits covered by its health insurance
policies, in breach of the Australian Consumer Law (03 September
2019).
More...
Practice and regulation
Customer loyalty schemes: draft report
Australian Competition and Consumer Commission: 05
September 2019
The ACCC has examined consumer and competition issues that are
associated with consumer-facing customer loyalty schemes in
Australia, including the way in which customer loyalty schemes
collect, use and disclose consumer data. The operators of customer
loyalty schemes must ensure they comply with the Australian
Consumer Law (ACL). It is also paramount that the
operators of customer loyalty schemes ensure consumers have a
genuine opportunity to review and understand the policy and
operation of customer loyalty schemes to avoid misleading and
deceptive conduct. More...
ACCC cartel immunity and cooperation policy effective on
1 October 2019
Under the revised policy, applicants seeking immunity will
now be asked to enter into a cooperation agreement early in the
immunity process, which will clearly set out the steps required for
conditional civil and criminal immunity. The policy will also
clarify a number of issues related to eligibility for immunity, the
level of cooperation required, how information is used and
confidentiality. The first party to report cartel conduct to the
ACCC may be eligible for civil and criminal immunity. See the ACCC
policy
here (06 September 2019).
ACCC: New guidelines on repeal of intellectual property
exemption issued
Changes to parts of Australia's competition law
relating to intellectual property (IP) matters,
effective from 13 September 2019, are explained in new ACCC
guidelines. See the guidelines on the repeal of subsection 51(3) of
the Competition and Consumer Act
here. Note: The repeal of subsection 51(3) means that certain
types of IP-related conduct are no longer exempt from the cartel
prohibitions, section 45 (anti-competitive agreements) and section
47 (exclusive dealing) of the Competition and Consumer Act
(CCA).
New Gift Card Laws
The Australian Consumer Law (ACL) has
been amended to provide protections for gift card consumers across
Australia. With some exemptions, the ACL will: require minimum
three year expiry periods for gift cards; require gift cards to
display expiry dates; and ban most post purchase fees on gift
cards. These changes apply to gift cards supplied to consumers on
or after 1 November 2019. Further information can be found in the
Explanatory Memorandum to the Treasury
Laws Amendment (Gift Cards) Act 2018 and the
Explanatory Statement to the Treasury
Laws Amendment (Gift Card) Regulations 2018.
Current Senate Inquiries 2019 - Environment and
Communications Legislation Committee
Competition
and Consumer Amendment (Prevention of Exploitation of Indigenous
Cultural Expressions) Bill 2019
ACCC digital platforms inquiry reminder
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). Further details to follow on
digital platforms page.
Reminder: 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
National Roads and Motorists' Association Limited v
Construction, Forestry, Maritime, Mining and Energy
Union [2019] FCA
1491
TRADE MARKS – infringement proceeding under ss
120(1) and (3) of the Trade Marks Act 1995 (Cth) –
where a trade union is using a sign depicting the applicant's
brand or logo as part of an industrial campaign against the
employer – where the employer is a wholly owned subsidiary of
the applicant – whether the union's sign is being used as
a trade mark – no use of the sign as a trade mark
CONSUMER LAW – claims of misleading or deceptive conduct
arising from representations made during the course of an
industrial campaign – whether impugned conduct is "in
trade or commerce" – principles derived from
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA
17; (1990) 169 CLR 594 considered – conduct not "in
trade or commerce"
TORTS – claims of injurious falsehood arising from statements
and representations made during an industrial campaign –
malice – necessity to establish actual damage – no
malice or actual damage
Competition and Consumer Act 2010 (Cth) ss 4, 6, Sch 2 ss
2, 18 and 29
Australian Competition and Consumer Commission v Cascade
Coal Pty Ltd [2019] FCAFC
154
COMPETITION – arrangement or understanding
restricting dealings in respect of the application process for
exploration licences for coal in the Mount Penny and Glendon Brook
areas of New South Wales – whether arrangement or
understanding contained an exclusionary provision – whether
corporate respondents were competitors or likely competitors
– whether the relevant provision was entered into for the
purposes of preventing, restricting or limiting the supply or
acquisition of specified services – joint venture defence
– whether alleged exclusionary provision was for the purposes
of a joint venture – whether other elements of s 76C defence
made out. Mining Act 1982 (NSW) ss 13(4), 14, 120, 133(1),
133(2); Trade Practices Act 1974 (Cth) ss 4D, 4F,
45(2)(a)(i), 45(2)(b)(i), 76C
Shoalhaven Sand Pty Ltd v Kennedy &
Ors [2019] NSWDC
494
CONTRACT – alleged oral agreement for shared
ownership of vehicular ferry – first and second defendants
owned the vehicular ferry that was replaced – plaintiff
contributed to purchase price for replacement ferry – whether
plaintiff acquired possessory interest pursuant to agreement -
significance of 'post contractual' conduct in proof of
verbal agreement.
TORTS – conversion – sale of ferry by first and second
defendants – whether infringement of plaintiff's
possessory interest – whether conversion by auctioneer,
acting on instructions of first and second defendants.
TRADE PRACTICES – misleading or deceptive conduct –
sale of island – island used for residence of first and
second defendants in conjunction with operational dairy farm
– representation by second defendant to third defendant (real
estate agent) that ferry was an inclusion in sale – whether
representation "in trade or commerce."
AGENCY – whether conduct constituting conversion engaged in
by corporate agent gives rise only to vicarious liability of
corporation – whether agent/employee personally liable in
tort.
Cadence (90) Investments Pty Ltd as trustee of the GDC
Discretionary Trust v Simon Dougal Chalmers
[2019] NSWSC 1168
CONSUMER LAW – Australian Consumer Law sections 2,
18 and 236 – misleading or deceptive conduct in trade or
commerce – person involved in contravention – where
plaintiffs make an investment by way of share subscription relying
on information provided by first defendant which is false because
revenue is overstated – knowing involvement of the second
defendant in the contravention – damages – assessment
– where plaintiffs investment is worthless; HELD: plaintiffs
entitled to damages against first and second defendants; LEGAL
PRACTITIONERS – requirement not to communicate contentious
material to a judge of the Court other than in open Court
–Solicitors' Conduct Rules – where solicitors for
the first and second defendants send without leave or consent
contentious material prior to a motion being heard at which they do
not intend to appear – impropriety of same – reiterated
that legal practitioners should not communicate in this fashion
Adam v Hasabo [2019] NSWSC
1167
RESTITUTION — Ineffective transactions —
General principles — Restitution of money paid —
Failure of consideration — Total failure rule — In
context of joint venture or partnership — Where partner's
intention and behaviour such that the joint venture had no real
existence
CONTRACTS — Misleading conduct under statute
—Misleading or deceptive conduct within the meaning of s 18
of the Australian Consumer Law — Representations and course
of conduct with no intention to make good on the promises made
— Damages
CONTRACTS — Breach of contract — Breach of loan
agreement/s — No repayments made to date —
Damages
CONTRACTS — Breach of contract — Breach of express term
of deed of agreement for sale of business — Failure of
condition subsequent — No repayment of amount advanced
— Damages
Civil Procedure Act 2005 (NSW); Competition and
Consumer Act 2010 (Cth)
Tisdall v Omeros & Anor [2019]
QSC 220
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH –
CONDITIONS – CONDITIONS AND WARRANTIES – where the
plaintiff and the defendants were together directors and
shareholders of a company – where the plaintiff sold his
shareholding to the defendants by way of a written share sale
agreement ("SSA") – where, after
completion of the sale, the defendants caused the shares to be
publicly listed – where the plaintiff contends that the
defendants withheld from or did not disclose to him that they were
contemplating and/or had commenced initial preparation to list the
shares in the company on the Australian Stock Exchange
("ASX") – where the plaintiff
contends the defendants breached cl 9(a)(i)(A) of the SSA, by which
the defendants warranted that they had not withheld from or failed
to disclose to the plaintiff any material information in relation
to the shares – whether breach of warranty is
established
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION –
MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS –
where the plaintiff contends, in the alternative, that the
defendants' alleged failure to inform the plaintiff that they
were contemplating and/or had commenced initial preparation to list
the company on the ASX was misleading or deceptive conduct, in
contravention of s 18 of the Australian Consumer Law – where
the plaintiff contends that he would not have entered into or
completed the SSA had the defendants disclosed or not withheld the
information, and that as a consequence of the misleading conduct,
he suffered loss and damage – whether the defendants'
conduct was misleading or deceptive – whether the plaintiff
suffered loss as a consequence of the defendants' allegedly
misleading or deceptive conduct
Competition and Consumer Act 2010 Cth sch 2, s 18, s
236
Australian Competition and Consumer Commission v LG
Electronics Australia Pty Ltd [2019] FCA
1456
CONSUMER LAW – remittal by Full Court on question of
appropriate relief and costs of hearing – application for
pecuniary penalties, injunction and disclosure order – where
respondent found to have contravened ss 18 and 29(1)(m) of the
Australian Consumer Law – where number of contraventions
proven substantially less than those alleged at trial and on appeal
– consideration of principles relevant to imposition of
penalties – costs
Competition and Consumer Act 2010 (Cth) Sch 2, Australian
Consumer Law, ss 18, 29(1)(m), 224, 232, 246(1)
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.