In the media
Mesoblast may face fresh class action claim in
Australia
A law firm in Australia is preparing a fresh class action
claim against Mesoblast that alleges misleading or deceptive
conduct to investors and breaches of continuous disclosure in the
way in which the biotech promoted the prospects of its main product
candidate, Remestemce (21 April 2021). More...
Big four banks dragged to court over consumer credit
insurance 'rort'
ASIC released its first report warning the industry about
the low-value products in 2011. Its criticisms included
"Misleading representations being made during . sale" and
now ASIC has commenced civil penalty proceedings against Westpac.
Rampant mis-selling meant products such as income protection
insurance were sold to people such as students and pensioners who
were not working and therefore unable to claim on it (21 April
2021). More...
Garuda drops appeal, to pay $19m price fixing penalty in
instalments
The Federal Court has approved a payment plan for airline
PT Garuda Indonesia Ltd (Garuda) to pay a $19 million penalty the
Court previously ordered relating to a long-running ACCC action
against a global price fixing cartel in the air cargo industry (20
April 2021). More...
Google 'partially' misled consumers over
collecting location data, Australian court finds
Google has been found to have
"partially" misled Australian consumers about collecting
their location data, according to a federal court ruling. The
court found that Google continued to collect "Location
History" on some Android and Pixel phones, even for customers
who ticked "No" or "Do not collect" on their
settings (16 April 2021). More...
Practice and Regulation
ACCC feedback: Choice and competition in search and
browsers
The ACCC has released an issues paper, 'Digital Platform Services Inquiry - September
2021 Report on market dynamics and consumer choice screens in
search services and web browsers' It is seeking
submissions in response to the issues paper by 15 April 2021 (March
2021). More...
ACCC Note: Screen scraping warnings not
anti-competitive
The ACCC, responding to questions on notice as part of a
parliamentary inquiry by the Senate Select Committee on Financial Technology
and Regulatory Technology, said that "statements or
warnings regarding potential security or safety risks associated
with screen scraping and sharing passwords does not appear to have
the purpose or effect of substantially lessening competition."
On 24 April 2020, the reporting date was extended from the first
sitting day in October 2020 to 16 April 2021.
Guidelines on Part XICA - Prohibited conduct in the
energy market
These guidelines set out how the ACCC will interpret Part
XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they
explain the general approach the ACCC will take in investigating
alleged contraventions of Part XICA (prohibiting certain conduct
involving retail pricing, financial contract markets and
electricity spot markets).
Part XICA will be in effect from 10 June 2020 to 1 January 2026.
More...
Cases
Australian Competition and Consumer
Commission v Google LLC (No 2) [2021]
FCA 367
CONSUMER LAW - alleged contraventions of ss 18, 29 and 33 or 34 of
the Australian Consumer Law (ACL) - whether particular users of
mobile devices were misled or likely to be misled into thinking
that with the Location History setting "off" and Web
& App Activity setting "on" Google LLC would not
obtain, retain and use personal data about a user's location -
consideration of users setting-up a Google Account, users wanting
to turn Location History "off" and users considering
whether to turn Web & App Activity "off" - whether
Google Australia Pty Ltd passed on the representations made by
Google LLC - alleged contraventions of ss 18, 29 and 34 of the ACL
by Google LLC and Google Australia Pty Ltd partially made out
Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer
Law, ss 18, 29, 33, 34, 140, 224
Trade Practices Act 1974 (Cth) ss 52, 53, 55A, 82; Consumer Affairs
Act 1972 (Vic).
Australian Competition and Consumer
Commission v Smart Corporation Pty
Ltd (No 3) [2021] FCA
347
CONSUMER LAW - application for remedies under the Australian
Consumer Law - respondent company in business of hiring out four
wheel drive vehicles - knowing involvement of second and third
respondents
CONSUMER LAW - misleading or deceptive conduct - false or
misleading representations - website and certain emails represented
that vehicles were fully insured - vehicles not fully insured -
contract term giving discretion to first respondent not to make
claim against insurer even if vehicle insured and instead claim
damage from hirer - finding that respondents had engaged in
misleading or deceptive conduct
CONSUMER LAW - unfair contract terms - contract term permitted
first respondent to track hire vehicles by global positioning
system (GPS) - GPS data used to create reports alleging that hirers
had engaged in driving behaviour which caused 'excessive wear
and tear' - contract term allowing first respondent to deduct
$500 from hirers' bonds per incident - contract term giving
discretion to first respondent not to make claim against insurer
even if vehicle insured and instead claim damage from hirer -
contract term providing that hirers must not denigrate first
respondent in any way after hire period had expired - terms found
to be unfair
CONSUMER LAW - unconscionable conduct - bonds retained after hire -
aggressive emails advising customers of bond retention - emails
threatened customers with litigation, referral to authorities on
basis of GPS data - emails intended to intimidate customers into
not challenging the retention of the bonds - conduct found to be
unconscionable
CONSUMER LAW - remedies - declarations including that contract
terms are unfair - penalties - unknowable number of contraventions
- course of conduct - non-party consumer redress orders
Acts Interpretation Act 1901 (Cth) s 15AB
Australian Securities and Investments Commission Act 2001 (Cth)
Part 2, Division 2
Bankruptcy Act 1966 (Cth) ss 58, 82
Competition and Consumer Act 2010 (Cth) ss 83, 155, 137H
Australian Securities and Investments
Commission v M101 Nominees Pty Ltd (No
3) [2021] FCA 354
CORPORATIONS - financial products offered by first defendant and
entities associated with second defendant - whether certain
entities provided financial services or financial products without
a financial services licence - whether financial products offered
by entities associated with second defendant had similar features
and are "inherently problematic" or "fatally
flawed" - whether new investors' funds were used to repay
redemptions promised to old investors - whether offering of certain
financial products entailed misleading and deceptive conduct -
whether certain entities provided financial services to a
"retail client" without complying with requirements in
Chapter 7 of the Corporations Act 2001 (Cth) - whether certain
financial products launched by second defendant to circumvent
orders of this Court in proceeding VID 228 of 2020
CORPORATIONS - whether second defendant was "directing mind
and will" of the relevant corporate entities - whether second
defendant involved in contraventions under s 79 of the Corporations
Act 2001 (Cth) and s 12GBCL of the Australian Securities and
Investments Commission Act 2001 (Cth)
CORPORATIONS - final relief - whether orders should be made
permanently restraining second defendant from engaging in certain
activities in relation to financial products
Held: Orders made restraining second defendant from engaging in
certain activities for a period of 20 years.
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.
