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

Last Updated: 6 November 2019
Most Read Contributor in Australia, October 2019

In the media

Myer class action fails in court
The Federal Court has ruled Myer will not need to pay damages in a class action brought by Amies Superannuation Fund trustee TPT Patrol, despite finding the retailer had engaged in misleading or deceptive conduct over a four-month period in FY15 (25 October 2019). More...

Aldi drops a number of charges against TWU
Discount retailer Aldi has dropped a number of charges in its Federal Court case against the Transport Workers Union (TWU) before hearings concluded in the Federal Court. The discount grocer is, however, still accusing the TWU of misleading and deceptive conduct (25 October 2019). More...

AAT unmoved by ATO website's 'poor use of language'
A taxpayer who attested to being misled by the "poor use of language" on the ATO's website has had his submissions rejected by the AAT despite the tribunal acknowledging that a mistake would not be made under the updated web page (22 October 2019). More...

Flight Centre pays $252,000 in penalties for Christmas and Easter promotions
The ACCC had grounds to believe that these advertisements were liable to mislead, and breached the Australian Consumer Law because Flight Centre failed to disclose to consumers that redeeming the $250 voucher was subject to certain conditions (21 October 2019). More...

Views sought on Murray-Darling Basin water markets
The ACCC is calling on irrigators and other water market participants to share their views on the operation of water markets in the Murray-Darling Basin. The ACCC will also be using its compulsory information gathering powers to obtain a very detailed picture of trading activity in water markets since 2012 (17 October 2019). More...

Heating product distributor Bromic admits to resale price maintenance
Bromic Pty Ltd, a national distributor of outdoor heating products, has admitted to engaging in resale price maintenance when it introduced a 'minimum advertised pricing' policy. Bromic stopped referring to and enforcing the policy after April 2018 but did not take any steps to communicate to its retail distributors that the policy was no longer in effect (16 October 2019). More...

Target will address customer complaints about faulty PlayStations
The ACCC has accepted a court-enforceable undertaking from Target Australia Pty Ltd (Target) in which Target admits it may have breached the Australian Consumer Law by making false or misleading representations in its dealings with customers who purchased faulty Sony PlayStations (15 October 2019). More...

Big W will address customer complaints about faulty Dyson appliances
The ACCC has accepted a court-enforceable undertaking from Woolworths Group Ltd trading as BIG W (Big W) in which Big W admits it may have breached the Australian Consumer Law by making false or misleading representations when dealing with customers who purchased faulty Dyson appliances (15 October 2019). More...

Practice and Regulation

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 apply from 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.

Home loan price inquiry
On 14 October 2019, the Treasurer directed the ACCC to conduct an inquiry into home loan pricing. The Treasurer directed that the Inquiry cover the period from 1 January 2019. More...

Consumer Affairs Victoria: Businesses to display all charges up front
Changes to the Australian Consumer Law will clarify prices for people shopping online. From 26 October 2019, businesses must include all charges in the advertised price of goods and services payable by a consumer. This includes charges for pre-selected options. More...

Cases

Bupa HI Pty Ltd v Chang [2019] FCAFC 180
HEALTH LAW — proper interpretation and application of Medicare Benefits Schedule — claim by private health insurer under the Australian Consumer Law against ophthalmologist and his service company in respect of allegedly overpaid amounts — primary judge dismissed insurer's claim — appeal dismissed
CONTRACT — whether insurer formed a "reasonable opinion" that conduct of ophthalmologist "may adversely impact" insurer's "goodwill, reputation or business" thus entitling it to "deregister" him from its "Gap Scheme" — primary judge made declaration that insurer had breached its contract with the ophthalmologist — appeal dismissed
Bupa had the evidentiary and persuasive burden of proving its misleading and deceptive conduct case, which was presented on an "all or nothing" basis as explained above. It follows, it cannot succeed as framed.

TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747
CORPORATIONS — representative proceeding — listed securities — continuous disclosure obligations — ASX listing rule 3.1 — failure to disclose material information to market — forecast of net profit after tax — absence of reasonable grounds — failure to correct forecast — concept of "information" under listing rules — concept of "awareness" under listing rules — contravention of s 674 of Corporations Act 2001 (Cth) — misleading or deceptive conduct relating to securities — contravention of s 1041H of Corporations Act – availability of market based or indirect causation theory — loss and damage

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2019] FCA 1677
CONSUMER LAW — whether, by terms upon which mobile, internet and home telephone service plans were offered on the respondent's website, the respondent telecommunication provider engaged in misleading or deceptive conduct — reasonable or ordinary consumer — meaning of "prepayment" — whether respondent contravened ss 18(1), 29(1)(b) and (i), and 34 of the Australian Consumer Law — whether term of mobile, internet and home telephone service plans was unfair within the meaning of s 23 of the Australian Consumer Law — whether, within the meaning of s 24 of the Australian Consumer Law, contract term creates significant imbalance — whether term reasonably necessary to protect legitimate interests of respondent — whether term causes detriment to consumers of telecommunication services — application dismissed

Lake v GBST Holdings Limited [2019] QSC 253
Judgment for the plaintiff for damages totalling $2,225,205.04 plus interest subject to any variances for changes in exchange rates since the trial.
EMPLOYMENT LAW — TERMINATION AND BREACH OF CONTRACT — TERMINATION OR BREACH — GENERALLY
CONTRACTS — GENERAL CONTRACTUAL PRINCIPLES — DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH — REPUDIATION AND NON-PERFORMANCE — REPUDIATION — GENERAL PRINCIPLES
TRADE AND COMMERCE — COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION — CONSUMER PROTECTION — MISLEADING AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS — PARTICULAR CASES — CONTRACTS GENERALLY — where communications were made by directors of the defendant company, GBST Holdings Limited, relating to share sales for the purpose of the plaintiff obtaining approval to sell shares and with respect to a proposal for entry into a lease for the benefit of the plaintiff – where the plaintiff subsequently sold shares in the defendant company and caused a subsidiary of the defendant company to enter into a lease for an apartment in which he and his family were to live – where as a result of the plaintiff's entry into these transactions, the defendant company alleged that he had engaged in fundamental and serious breaches of his employment contract giving it the right to summarily terminate that contract – whether the communications occurred in the course of trade or commerce – whether the communications were misleading – whether the plaintiff relied on the communications – whether the plaintiff would not have proceeded with entering into the transactions if the alleged misleading or deceptive conduct had not occurred. Australian Consumer Law (sch 2 of the Competition and Consumer Act 2010 (Cth))

F.J. & P.N. Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236
CONTRACTS — Construction of contracts — Rural land — Option to purchase — Lease — Development works for almond farming rendered land unusable — 'Crop compensation' paid — Whether crop compensation payable under contractual documents — No entitlement to crop compensation under contract.
EQUITY — Estoppel by convention — Whether representations regarding crop compensation made — Evidence that crop compensation would be paid supported by objective circumstances and compelling inferences – No lack of clarity or precision in evidence — Representations made — Whether oral evidence of pre-contractual negotiations can found conventional estoppel — Retirement Services Australia RSA Pty Ltd v 3143 Victoria Street Doncaster Pty Ltd [2012] VSCA 134; (2012) 37 VR 486; Johnson Matthey Ltd v AC Rochester Overseas Corp [1990] 23 NSWLR 190 considered — Unnecessary to decide — Representations made in continuum of conduct between parties — Mutual assumption found — Conventional estoppel found.
EQUITY — Equitable estoppel — Promissory estoppel pleaded as positive right to crop compensation payments — Whether promissory estoppel has defensive character only — Saleh v Romanous [2010] NSWCA 274; (2010) 79 NSWLR 453; DHJPM Pty Ltd v Blackthorn Resources [2011] NSWCA 348; (2011) 83 NSWLR 728 considered — Not appropriate case in which to decide principle.
LIMITATION OF ACTIONS — Limitation of Actions Act 1958 s 27 — Whether payments by mistake — Payments not by mistake — Conventional estoppel — Any mistake discoverable by 2007 — Counterclaim for repayment of crop compensation statute-barred.
The judge described the 'main issues to be resolved' as follows: (c) Did AIL engage in misleading and deceptive conduct in breach of section 18 of the Australian Consumer Law, or act negligently and thereby cause loss and damage to Curran? (d) Is Curran entitled to damages for any loss suffered as a result of misleading and deceptive conduct or negligent misrepresentation by AIL?

In the matter of AA Management Co Pty Limited [2019] NSWSC 1443
CORPORATIONS — Winding up — Statutory demand — Application to set aside demand because of genuine dispute — Dispute involving family companies — Prior proceedings settled by Deed of Settlement — Deed provided for payment of sum by sunset date to defendant from proceeds of sale of real property — "Best endeavours" clause — Property not sold — Demands served on eight family companies — Recovery proceedings simultaneously commenced against individual family members — Whether genuine dispute as to construction of Deed — Whether deed voidable or rescindable for misleading and deceptive conduct or misrepresentation — Genuine dispute made out — Demands set aside. Australian Consumer Law, ss 18, 243

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
 
Related Video
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