In the media
ACCC targets misleading organic claims
Dreamz Pty Ltd, trading as GAIA Skin Naturals
(GAIA), has paid $37,800 in penalties for alleged
false or misleading representations after the ACCC issued three
infringement notices. GAIA described its Natural Baby Bath &
Body Wash, Baby Shampoo and Baby Moisturiser as "Pure Natural
Organic". However, these products contain two synthetic
chemical preservatives: sodium hydroxyl methyl glycinate and
phenoxyethanol (20 June 2018).
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ACCC: Alinta Energy misled consumers on discounts
Alinta Energy (Alinta) has undertaken to
compensate thousands of Victorians for making misleading
electricity price comparisons which the ACCC considered were likely
in breach of the Australian Consumer Law. Between 9 December 2017
and 28 February 2018, Alinta's advertisements compared
increases in its competitors' standing or undiscounted tariff
rates to decreases in Alinta's discounted tariff rates (20 June
2018).
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Misuse of SMSF funds sees adviser convicted
After a history of non-compliance, a former financial
adviser has been convicted for engaging in dishonest conduct with
investor funds, including money from SMSFs. The investigation also
found that Mr Nakhl made false and misleading statements and
engaged in misleading and deceptive conduct, including making
statements about the returns clients could expect and the risks of
the investments he promoted (19 June 2018).
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Apple fined $9 million as Federal Court finds repairs
policy breached Australian Consumer Law
The Federal Court of Australia has fined Apple $9 million
after it ruled that the company's repair policies breached the
Australian Consumer Law (ACL). Justice Michael Lee
ruled that Apple engaged in misleading or deceptive conduct, or
conduct that was likely to mislead or deceive, ruling that its
refusal to provide free repairs to Apple devices previously
serviced by a third party was in contravention of the ACL (19 June
2018).
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Domain name registrars ordered to pay nearly $2M over
billing claims
The Federal Court of Australia has ordered domain
registrars Domain Name Corp and Domain Name Agency a combined
amount of $1.95 million in penalties after they sent out
approximately 300,000 unsolicited notices to businesses. The ACCC
alleges that because these notices looked like they were renewal
invoices, many businesses paid them thinking they were simply
renewing the domain name for their business (15 June 2018).
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Priestley steps down from ASX, Future Fund amid cartel
case 'distraction'
The former chief executive of JP Morgan in Australia, Rob
Priestley, is resigning from the boards of the ASX and the Future
Fund, saying the cartel case over ANZ's capital raising may
become a "distraction" (18 June 2018).
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A Sydney retailer is suing the NSW government claiming
its profits were halved by the delayed light rail project
Watches of Switzerland is the first retailer to launch
legal action against the government and Transport for NSW over the
12-kilometre project. Spanish subcontractor Acciona is suing the
government for more than $1 billion in compensation for
"misleading or deceptive conduct" over the contract to
design and build the line (18 June 2018).
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ASIC powers over Initial coin offerings in
Australia
The ACCC's powers under the ACL have recently been
delegated, in relation to ICO/token sales only, to ASIC. What this
means is that ASIC now has jurisdiction to raise issues of
misleading and deceptive conduct in relation to ICOs without
needing to establish that an ICO is the offer of a security (13
June 2018).
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Bananacoast Community Credit Union pays $50,400 for
misleading advertising and provides remediation to consumers
ASIC enforcement action has resulted in four infringement
notices totalling $50,400 to Bananacoast Community Credit Union Pty
Ltd (BCU) for potentially misleading statements in
several online advertisements, as well as remediation to affected
consumers (13 June 2018).
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Australia Post 'misled' franchisees, Senate
inquiry told
Australia Post misrepresented the growth potential and
banking accreditation of a franchise model it pitched to licensed
post office owners in 2006, but the aggrieved franchisees have no
affordable recourse, a Senate inquiry into franchising has been
told (11 June 2018).
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Criminal charges against banking 'cartels' show
Australia is getting tough on competition law
The case, brought by the Commonwealth Director of Public
Prosecutions (CDPP) after an investigation by the
Australian Competition and Consumer Commission
(ACCC), is the second prosecution of its kind to
be brought in Australia since competition laws were tightened
almost a decade ago (08 June 2018).
More...
Published reports
2018 Retail
energy competition review
Australian Energy Market Commission: 15 June
2018
This year's review found that while competition in the
retail energy market continues to evolve, it is currently not
delivering the expected benefits to consumers.
Water monitoring
report 2016–17
Australian Competition and Consumer Commission: 12
June 2018
The ACCC has completed its eighth annual report under the
Water Act 2007 (Cth). This report provides information on
the state of the rural water sector in the Murray-Darling Basin for
the 2016–17 financial year.
Cases
Australian Competition and Consumer Commission v The
Construction, Forestry, Mining and Energy Union (No
4) [2018] FCA 684
COMPETITION – secondary boycott – pecuniary
penalties – course of conduct and totality principles –
relevance to penalty of actual loss and damage occurring in
secondary boycott – injunctions – compliance program
– form of declarations.
COSTS – Calderbank offer – relevant factors –
special consideration of regulator's role.
COSTS – apportionment of costs Fair Work Act 2009
(Cth); Trade Practices Act 1974 (Cth).
Robinson v 470 St Kilda Road Pty Ltd
[2018] FCAFC 84
DAMAGES – loss or damage – assessment of
damages – causation – where the claim for damages was
run as an "all or nothing" case – whether the
primary judge erred in concluding that the consequence of the
appellant's failure to disclose its financial position was that
the respondent would not have paid a sum in respect of the payment
claim – where the primary judge's conclusion at trial was
open on the evidence adduced and the case as pleaded.
CONSUMER LAW – misleading or deceptive conduct – loss
or damage – assessment of damages – proportionate
liability – application of Competition and Consumer Act
2010 (Cth) Pt VIA, Proportionate liability for misleading and
deceptive conduct – "apportionable claim" –
"concurrent wrongdoer" – Tesco liability –
whether the director's liability for an act should be reduced
from 100% to 50% to be shared with the company.
Australian Competition and Consumer Commission v Pfizer
Australia Pty Ltd [2018] FCAFC
78
COMPETITION – appeal by the Australian Competition
and Consumer Commission against an order of the Federal Court
dismissing a proceeding against Pfizer in which the ACCC alleged
that Pfizer had contravened s 46 and s 47(1) of the Competition
and Consumer Act 2010 (Cth) when it took certain steps
pursuant to a plan designed to enable Pfizer to compete in the
market for the wholesale supply of a pharmaceutical (atorvastatin)
to community pharmacies in Australia after the expiry of the
Australian patent for atorvastatin held by Pfizer.
COMPETITION – misuse of market power – whether the
primary judge erred in market definition – whether the
respondent had a substantial degree of market power in the relevant
market – whether the respondent took advantage of its market
power – whether the respondent had the purpose of
"deterring" a person from engaging in competitive conduct
in the atorvastatin market – whether the ACCC's case as
pleaded was legally incoherent.
COMPETITION – exclusive dealing – whether the
respondent supplied upon "condition" – whether the
respondent had the purpose of substantially "hindering"
competition in the atorvastatin market – whether s 51(3)
defence was established.
Midland Metals Overseas v Australian Cablemakers
Association [2018] NSWSC
938
Proceedings dismissed with costs; liberty to apply for
some further or varied costs orders.
COMMERCE – misleading or deceptive conduct – where the
Australian Cablemakers Association sent letters to government
Ministers informing them of safety concerns with Midland's
cable – common ground that the letter contained incorrect
representations – whether the letters had tendency to lead
the recipient Ministers into error – enquiry to be conducted
by reference to the objectively known characteristics of the
recipient – each recipient had available considerable expert
resources which they would inevitably consider before forming a
conclusion on the letter – no likelihood that the letter by
itself would lead any Minister into error – this conclusion
is supported by reference to what actually took place – no
misleading or deceptive conduct – proceedings
dismissed.
Australian Consumer Law , Schedule 2 to the Competition and
Consumer Act 2010 (Cth).
Hilchrist Pty Ltd v Visual Integrity Pty Ltd
[2018] QDC 097
CONTRACT – Agreement contemplating formal document
– whether formal agreement superseded informal agreement
– effect of change of parties.
CONTRACT – Conditions and warranties – interpretation
of terms – whether breaches of warranties proved –
whether substantial damages proved.
EQUITY – Equitable estates and interests – vendor's
lien – whether available over personalty – whether
arising.
FRAUD, MISREPRESENTATION AND UNDUE INFLUENCE – Alienation of
property with intent to defraud – nature of intent –
whether proved.
TRADE PRACTICES – Misleading and deceptive conduct –
whether representation made – whether relied on.
Telstra Corporation Ltd v Singtel Optus Pty Ltd (No
2) [2018] VSC 280
CONSUMER LAW – Alleged misleading or deceptive
conduct – Whether defendant's advertisements breach
Australian Consumer Law (sch 2 to the Competition and Consumer
Act 2010 (Cth)) – False or misleading representations
– Whether representations liable to mislead as to performance
characteristics of services – held advertisement did not
convey pleaded representations – Claim dismissed.
Commissioner for Consumer Affairs v Koutropoulos &
Anor [2018] SASC 79
Trade and commerce - Competition, fair trading and
consumer protection legislation - enforcement and remedies -
penalty - principles of assessment - consumer protection
contraventions.
Trade and commerce - competition, fair trading and consumer
protection legislation - consumer protection - misleading or
deceptive conduct or false representations.
Trade and commerce - competition, fair trading and consumer
protection legislation - enforcement and remedies - penalty.
The defendants admitted to 18 contraventions of sections 18(1),
29(1)(m) and 36(4) of the Australian Consumer Law
(ACL) in connection with the provision of
international travel services.
Defendants ordered to pay compensation to specific consumers named
in the judgment, and to any other consumers who are assessed by
Consumer and Business Services as having been adversely
affected.
Pecuniary penalties of $50,000 in relation to the first defendant
and $100,000 in relation to the second defendant imposed.
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.