In the media
NDIS buyers urged to exercise rights
The ACCC has reminded people with disability to use their
consumer rights when purchasing goods or services under the
National Disability Insurance Scheme (NDIS).
Deputy Chair of the ACCC reminded new and existing businesses that
they must also comply with their obligations under the
Competition and Consumer Act, which includes the
Australian Consumer Law (26 April 2019).
More...
Federal Court finds ticket reseller Viagogo misled
consumers
The ACCC took the company to court for its practices when
selling tickets to music, sport and theatre events, ultimately
finding ticket reseller
Viagogo to have misled consumers. The company has been the
subject of customer complaints, industry backlash and court action
overseas (19 April 2019).
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Australian 4WD Hire in court for alleged breaches of
consumer law
The ACCC has instituted proceedings against four-wheel
drive vehicle rental company Smart Corporation Pty Ltd (trading as
Australian 4WD Hire), alleging it used unfair contract terms,
engaged in unconscionable conduct, and made false or misleading
representations in relation to insurance cover, in breach of the
Australian Consumer Law (ACL) (18 April 2019).
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Giant global brands ban supermarket deliveries in price
war
The pricing stoushes with Nestle and Mars are a rare black
eye for the supermarket giants, who have long histories of using
their market power to bully their suppliers. The introduction of a
Grocery Code of Conduct in 2015 has reined in the worst excesses,
but the big two still apply the blowtorch as hard as they can to
try to keep prices down. But small suppliers remain at the mercy of
the supermarket giants in the ongoing war over low prices (18 April
2019).
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Bupa Aged Care faces ACCC action over alleged false
claims at aged care centres
The competition watchdog is taking Bupa Aged Care to court
alleging that for more than a decade it charged residents for
numerous expensive services it never provided (16 April 2019).
Bupa Aged Care faces ACCC action over alleged false claims at
aged care centres.
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Practice and Regulation
Interagency cooperation agreement between ACCC and
FBI
The MOC provides for the exchange of expertise and staff
between the two agencies to enhance work in the detection,
investigation and prosecution of criminal competition offences. The
MOC complements an existing intergovernmental agreement between
Australia and the United States, which allows for in-depth
cooperation between the ACCC and various competition law
enforcement bodies in the US (15 April 2019).
More...
Cases
Australian Competition and Consumer Commission v Viagogo
AG [2019] FCA 544
CONSUMER LAW – misleading or deceptive conduct
– contravention of ss 18, 29(1) and/or 34 of the Australian
Consumer Law – part price representations in contravention of
s 48(1) of the Australian Consumer Law – where respondent
represented that it was an authorised or official seller of tickets
when it was not – where respondent made representations as to
number of tickets remaining available for sale from the venue when
in fact remaining tickets available were only from the respondent
– where total price not adequately disclosed because of
additional fees– where part price representations were made
in breach of s48(1) – conduct in contravention of the
Australian Consumer Law for each of the alleged misrepresentations
- Competition and Consumer Act 2010 (Cth)
Schedule 2, ss 18, 29(1), 34, 48.
Batterham v Nauer, in the matter of Peter James
Batterham [2019] FCA
485
BANKRUPTCY AND INSOLVENCY – application to set aside
bankruptcy notice under s 40(1)(g) of the Bankruptcy Act
1966 (Cth) – where applicant asserts
cross-claim exceeding the amount in the bankruptcy notice –
where claims of relief are either misconceived or doomed to fail
– application summarily dismissed.
PRACTICE AND PROCEDURE – summary dismissal under r 26.01 of
the Federal Court Rules 2011– applicant seeks damages for
breaches of director's duties under ss 180, 181, and 182, as
well as oppressive conduct under s 232 and s 233 of the
Corporations Act 2001 (Cth) – where no
entitlement to claim damages or statutory compensation –
claim summarily dismissed.
PRACTICE AND PROCEDURE – summary dismissal under r 26.01 of
the Rules – applicant seeks damages pursuant to s 236 of the
Australian Consumer Law, being Schedule 2 to the Competition
and Consumer Act 2010 (Cth) – material facts
not pleaded – no identifiable basis for claim –
application summarily dismissed.
PRACTICE AND PROCEDURE – summary dismissal under r 26.01 of
the Federal Court Rules 2011 – applicant seeks damages for
breach of fiduciary duties in a joint venture – no facts
pleaded of partnership or other fiduciary relationship –
claim summarily dismissed.
Corporations Act 2001 (Cth) ss 180, 181, 182,
232, 233; Australian Consumer Law, being Schedule 2 to the
Competition and Consumer Act 2010 (Cth) s 236;
Bankruptcy Act 1966 (Cth) ss 5, 40(1)(g), 58;
Superannuation Industry (Supervision) Act 1993
(Cth).
Porges v Adcock Private Equity Pty Ltd
[2019] NSWCA 79
CONTRACTS — Misleading conduct under statute
— Misleading or deceptive conduct — Silence —
Sale of shares in company — Vendor represented to purchaser
that company was good and profitable investment — Vendor
disillusioned with management of company — Vendor aware of
risk of litigation against company — Whether primary judge
erred in finding vendor's failure to disclose was misleading or
deceptive conduct.
Midland Metals Overseas PTE Limited v Australian
Cablemakers Association Limited [2019] NSWCA
78
TRADE AND COMMERCE – Competition and
Consumer Act 2010 (Cth), Sch 2 – Australian
Consumer Law, s 18 – whether conduct misleading or deceptive
– common ground that letters contained incorrect
representations – whether the letters had tendency to lead
the recipient Ministers into error – inquiry to be conducted
by reference to objective characteristics of recipient –
inquiry to be conducted prospectively – no likelihood that
the letter would lead Ministers into error.
TRADE AND COMMERCE – Competition and Consumer Act
2010 (Cth), Sch 2 – Australian Consumer Law, s
18 – whether conduct in trade and commerce – where
letters sent to government Ministers informing them of electrical
cable safety concerns – where body making impugned
representations is a representative group for Australian cable
manufacturers – where impugned representations relate to
electrical cable safety standards.
CIVIL PROCEDURE – Court of Appeal – where issues not
raised at trial sought to be agitated – appellant not
permitted to reframe its case not put below – Coulton v
Holcombe (1986) 162 CLR 1; [1986] HCA 33 and Metwally v University
of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481 applied.
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