In the media
Apple accuses CBA of 'misleading' digital
wallets inquiry
Apple has fired back at accusations it guards its mobile
payment technology in an anticompetitive way, accusing its critics,
including the Commonwealth Bank's boss, of misleading a
parliamentary inquiry and wanting to reduce their own competition
(27 August 2021).
More...
Sims proposes change to merger laws
In his annual Law Council address, ACCC Chair, Rod Sims,
kicked off debate on the appropriateness of Australia's merger
control regime, highlighting four areas in need of particular
attention that include the need for recognition that acquisitions
of rivals by firms with substantial market power are more likely to
cause harm. View
full speech (27 August 2021).
Santos sued over 'clean energy' claims
Santos' claims that it produces clean energy and has a
pathway to reach net zero emissions are being challenged in the
Federal Court by an activist group that alleges the company has
breached corporations and consumer laws, engaging in misleading or
deceptive conduct by claiming in its 2020 annual report that
natural gas provides "clean energy" (26 August 2021).
More...
ACCC seeks insights on interstate rail network
regulation
The way that Australia's interstate rail network is
regulated is under review and the ACCC has released an
issues paper calling for input from businesses that rely on the
network. ACCC Commissioner Anna Brakey said it is important that
the regulatory framework for the interstate network protects users
by preventing ARTC, as a monopoly, from exercising market power (25
August 2021).
More...
The ACCC authorises collective procurement of residual
waste services by Gippsland Councils
The ACCC has decided to authorise the Gippsland Waste and
Resource Recovery Group and 6 councils located in Gippsland,
Victoria, to jointly tender, procure and manage residual waste
services (25 August 2021).
More...
Phoenix Institute acted unconscionably and misled
students
The Commonwealth has already cancelled the debts of
eligible students enrolled by Phoenix, so consumer redress has been
achieved. Unfortunately, the ACCC did not take legal action against
any of the individuals behind the Phoenix Institute. Therefore,
declarations, injunctions, penalties and other orders against these
two companies will serve no practical purpose (24 August 2021).
More...
Thales appeals court judgement
Thales has appealed a judgement made by the Queensland
Supreme Court related to the issues involving the underslung 40mm
grenade launcher on the AusSteyr EF88 rifle. "The appeal is
against both the breach of confidence and the misleading and
deceptive conduct rulings, on the basis that Thales was incorrectly
found liable based on inferences that were not supported by the
evidence (23 August 2021).
More...
Small business contacts continue to rise during
pandemic
The ACCC received over 3,500 contacts from small
businesses in the first six months of this year, the highest number
of contacts in the last two years. In the first six months of this
year, the ACCC undertook a range of enforcement action in the small
business, franchising and agriculture sectors, which include
ordering Jump Swim (in liquidation) to pay penalties of $23 million
for making false or misleading representations.
More...
CBA to publish misconduct notices for overcharging
interest
The Federal Court has made orders requiring the
Commonwealth Bank of Australia (CBA) to publish
notices on its website and its newsroom acknowledging the
bank's false or misleading conduct when it overcharged interest
on business overdraft accounts (16 August 2021).
More...
CDPP withdraws criminal cartel charges against CFMMEU
and O'Mara
The CDPP has withdrawn criminal cartel charges against the
Construction, Forestry, Maritime, Mining and Energy Union
(CFMMEU) and ACT Divisional Branch Secretary,
Jason O'Mara.The allegation was that the CFMMEU and O'Mara
'attempted to induce suppliers of scaffolding services to enter
into cartel arrangements regarding prices for scaffolding services
provided to builders in the ACT in 2012 to 2013 (17 August
2021)'.
More...
Why Clive Palmer's lockdown ads can be rejected by
newspapers on ethical grounds
The laws regulating political advertising are minimal.
Section 329 of the Commonwealth Electoral Act is confined to the
issue of whether a publication is likely to mislead or deceive an
elector in relation to the casting of a vote. It has nothing to say
about truth in political advertising for the good reason that
defining truth in that context would be highly subjective and
therefore oppressive (16 August 2021).
More...
Practice and Regulation
ACCC Issues Paper: Digital Platform Services Inquiry
– March 2022 Report on general online retail
marketplaces
The ACCC will consider pricing practices; the use of data;
the terms and conditions imposed on third-party sellers; and the
impacts on competition when the marketplace itself operated as a
seller on the platform. Submissions to the inquiry open until 19
August. The ACCC's Issues Paper, including information on how
the have a say, can be accessed
here.
Cases
Australian Competition and Consumer Commission v Employsure
Pty Ltd [2021] FCAFC
142
CONSUMER LAW – misleading or deceptive conduct and
making false or misleading representations by causing the
publication of Google advertisements in contravention of ss 18(1),
29(1)(b) and 29(1)(h) of the Australian Consumer Law – use of
keywords and dynamic keywords in relation to paid Google
advertisements – relevant principles in relation to
misleading or deceptive conduct and false or misleading
representations – appropriate approach to appellate review in
a case involving an evaluative decision – whether primary
judge erred in the attribution of characteristics to the broad and
diverse target audience of the advertisements – whether
ordinary or reasonable class members taking care of their own
interests were likely to have a range of reasonable reactions to
the Google advertisements – whether the primary judge erred
in conceiving of only one reasonable reaction – whether
primary judge erred in finding the Google advertisements did not
convey the alleged representations – whether primary judge
erred in relying on the "not insignificant number" test
– appeal upheld – matter remitted to primary judge on
questions of pecuniary penalty and costs of the proceeding
below
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer
Law) ss 18, 21, 23, 24, 29; Evidence Act 1995 (Cth) s 140; Trade
Practices Act 1974 (Cth) ss 52, 53
Belflora Pty Ltd v Vinflora Pty Ltd
[2021] NSWCA 178
COMMERCE – restraint of trade – validity and
reasonableness – legitimate interests – where restraint
imposed a blanket protection from importation of goods from a
subcontinent – whether blanket protection directed to
preserve or maintain a personal or corporate relationship with a
supplier – where restraint did not relate to any particular
supplier – Restraints of Trade Act 1976 (NSW), s 4 COMMERCE
– restraint of trade – validity and reasonableness
– public policy – where restraint imposed a blanket
protection from importation of goods from a subcontinent –
whether restraint was against the public interest – where
restraint prohibited respondents from competing in the market for
the supply and sale of goods from a subcontinent – Restraints
of Trade Act 1976 (NSW), s 4.
Anchorage Capital Master Offshore Ltd v Sparkes (No 3);
Bank of Communications Co Ltd v Sparkes (No 2)
[2021] NSWSC 1025
CONSUMER LAW – misleading and deceptive conduct
– whether company officers made misleading statements when
signing drawdown and rollover notices – whether
representations made by company officer personally or as company
organs – held company officers did not personally engage in
misleading and deceptive conduct CORPORATIONS – insolvency
– whether company insolvent – application of test under
Corporations Act 2001 (Cth) – where company alleged not to be
able to repay future debt – where future debt not current
– application of civil standard of proof to future or
hypothetical event – where ability to compromise debt
relevant to the question of insolvency – use of hindsight
– where use of hindsight impermissible – where
hindsight used not to show what was possible or likely at some
point in the past but to establish a fact at an earlier point
PERSONAL PROPERTY – assignment of choses in action –
prohibition on assignment of bare chose in action TORTS –
duty of care – whether company officers owed a duty of care
to lenders in signing drawdown and rollover notices – Whether
company officers personally made representations contained in
drawdown and rollover notices and owed a duty of care to lenders
when making representations – whether representations made by
company officers personally or as company organs – held
company officers did not owe a duty of care – held
representations made on behalf of the company – held
unreasonable for lenders to rely on representations as
representations made personally by company officers – breach
– where claim that company officers did not turn their mind
to the question whether representations in the notices were true
and did not make their own inquiries – held company officers
entitled to rely on management to be told if representations in the
notices could not be made – causation – causation not
found on the facts TORTS – duty of care – held no
reason to recognise a duty of care between sophisticated commercial
entities when consequences of breach of contract are already set
out in the agreements TORTS – duty of care – whether
director owed a duty of care to lenders before instructing company
officers to draw all funds from facility agreements with lenders
– held director or employee does not owe a duty of care to
avoid economic loss to third party when making and communicating a
decision to another employee TORTS – duty of care –
accessorial liability – directing or procuring breach of
contract – held director and employee not liable for
directing or procuring breach of contract when director did not act
personally but as an organ of the company – directing or
procuring breach of duty – held that there is no duty in tort
to take reasonable care to perform a contract TORTS –
negligence – where claim brought under negligent misstatement
and negligence as two separate causes of action – where
officer of the company found to owe the lenders a duty of care in
circumstances where lender made specific enquiries and officer
could reasonably be expected to know or find out relevant
information – where reliance not proved on the facts TORTS
– negligence – whether legal advice was negligent and
misleading and deceptive – where allegation not proved
DAMAGES – quantification – alternative methodologies
– damages calculated comparing the position in which the
lenders would have been but for the defendants' wrongful
conduct – damages calculated assuming that but for the
defendants' wrongful conduct the company would have entered
into voluntary administration earlier than it did – where
counterfactual not subject of evidence – whether plaintiffs
entitled to compound interest as damages –whether claim
should be converted into Australian dollars
Australian Securities and Investments Commission v Bank of
Queensland Limited [2021] FCA
957
CONSUMER LAW - small business lending contracts - unfair
contract terms within the meaning of s 12BG(1) of the Australian
Securities and Investments Commission Act 2001 (Cth) - agreed facts
- where bank concedes impugned terms unfair - where impugned terms
include terms relating to indemnities, events of default,
unilateral variations and conclusive evidence - where parties seek
declarations under s 12BF, s 12BG and s 12GND that terms unfair and
void - declarations made - orders made varying contract terms under
s 12GNB - undertaking proffered
Australian and Securities Investments Commission Act 2001 (Cth) ss
12BAA, 12BF, 12BG, 12BH, 12BK, 12GB, 12GNB, 12GNC, 12GND, Division
2, Part 2
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian
Consumer Law) s 24
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