In the media
Southern Response wants to cut litigation funder out of
potential settlement
Southern Response is still pondering whether to appeal the
High Court's decision on its "deceptive conduct"
– and it seems that it wants the claimants to avoid having to
pay a portion of any settlement to the litigation funder, Claims
Funding Australia (28 September 2019).
More...
Concerns about sale of RMS Tasmanian forestry
assets
New Forests is a vertically integrated forestry investment
manager which manages plantations, forestry and processing
infrastructure in Tasmania. The ACCC considers there are many
circumstances where these commonly managed or advised funds may be
motivated to act to each other's mutual benefit. Note: The ACCC
has published a statement of issues outlining its preliminary
concerns. It invites submissions from interested parties by 10
October 2019 (26 September 2019).
More...
Full Federal Court confirms franchisor obligations in
Ultra Tune appeal decision
In reducing the total penalty imposed on Ultra Tune to
$2.014 million, the Court found that Ultra Tune's breach of the
sufficient detail requirement resulted from "egregious
inadvertence" to its obligations. In January 2019, the Court
found that Ultra Tune breached the Code and the Australian Consumer
Law in its dealings with a prospective franchisee, including by
making false and misleading representations (23 September 2019).
More...
Dieselgate closure in sight for Volkswagen as its agrees
to terms with ACCC
Volkswagen Group Australia (VGA) is one
step closer to putting the dieselgate affair behind it in this
market with an announcement that it has reached in-principle
settlement with the ACCC over claims by the consumer watchdog that
the company engaged in misleading or deceptive conduct over diesel
emissions claims (23 September 2019).
More...
ASIC wins court case against asset manager
The Federal Court of Australia has delivered judgment in
ASIC's favour in proceedings against Gallop International
Group, Gallop Asset Management, Stumac and former director
Ming-Chien Wang. Judge Charlesworth found GIG operated a financial
services business without holding a financial services licence,
published statements which were false and misleading and engaged in
misleading and deceptive conduct (23 September 2019).
More...
Record $26.5m penalty and $56m repayment ordered against
training college Empower Institute
The FCA found that Empower had engaged in a system of
unconscionable conduct when it enrolled consumers in VET FEE-HELP
funded courses, by marketing courses to consumers in remote
communities, indigenous communities and low socio-economic areas,
making false or misleading representations, using recruiters who
were practically untrained and in some cases offering inducements
such as free Google Chromebooks (20 September 2019).
More...
More trouble for iSignthis as regulatory crackdown hits
its customers
A regulatory crackdown on high-risk financial products has
hit customers of Australia's latest billion-dollar tech stock,
iSignthis. The regulator obtained interim injunctions against the
two brokers stating they engaged in conduct that was
"misleading or deceptive, and/or unconscionable." (19
September 2019).
More...
BlueScope execs toured world trying to form carrot-stick
cartel: ACCC claims
Senior BlueScope executives, including former general
manager sales Jason Ellis, allegedly flew around the world meeting
with the steel giant's competitors and distributors in an
attempt to set up a cartel that would rig the prices of steel and
create a massive windfall for the ASX-listed company (18 September
2019).
More...
'Second-class citizens': Union's Manly Fast
Ferry claims allowed
The Maritime Union can lawfully claim the Manly Fast Ferry
service treats its workers as "second-class citizens", a
Federal Court judge has found. The NRMA had launched urgent court
action asserting the union's claims were misleading or
deceptive but Justice Griffiths disagreed in a judgment delivered
on Wednesday last week (17 September 2019).
More...
Practice and regulation
ACCC cartel immunity and cooperation policy effective on
1 October 2019
Under the revised policy, applicants seeking immunity will
now be asked to enter into a cooperation agreement early in the
immunity process, which will clearly set out the steps required for
conditional civil and criminal immunity. The policy will also
clarify a number of issues related to eligibility for immunity, the
level of cooperation required, how information is used and
confidentiality. The first party to report cartel conduct to the
ACCC may be eligible for civil and criminal immunity. See the ACCC
cartel immunity and cooperation policy
here.
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 supplied to consumers on or after 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.
Current Senate Inquiries 2019 - Environment and
Communications Legislation Committee
Competition
and Consumer Amendment (Prevention of Exploitation of Indigenous
Cultural Expressions) Bill 2019
ACCC Digital Platforms Inquiry reminder
The
report contains 23 recommendations, spanning competition law,
consumer protection, media regulation and privacy law, reflecting
the intersection of issues arising from the growth of digital
platforms. Before a detailed Government response is provided a
further consultation process will take place. It will run for 12
weeks, after which the Government intends to release its response
(by the end of 2019). Further details to follow on
Digital Platforms page.
Cases
Australian Competition and Consumer Commission v
Cornerstone Investment Aust Pty Ltd (in liq) (No 5)
[2019] FCA 1544
CONSUMER LAW – contraventions of the Australian
Consumer Law (ACL), being Sch 2 to the
Competition and Consumer Act 2010 (Cth) –
application for declarations, pecuniary penalties, a consumer
redress order, compensatory orders and costs – systemic and
individual breaches of the ACL – whether the second applicant
suffered loss as a result of the contravening conduct
PRACTICE AND PROCEDURE – where applicants seek to withdraw
undertaking not to enforce monetary orders against respondent in
liquidation – whether undertaking precludes applicants from
lodging proof of debt – undertaking varied
Competition and Consumer Act 2010 (Cth) Sch 2 ss 18, 21,
29, 74, 75, 76, 78, 79, 155, 224, 237, 239
Corporations Act 2001 (Cth) ss 471B, 500, 553B;
Federal Court of Australia Act 1976 (Cth) s 53
Trade Practices Act 1974 (Cth) ss 45D(1), 52, 53(g), 82,
87
Australian Securities and Investments Commission v
Gallop International Group Pty Ltd, in the matter of Gallop
International Group Pty Ltd [2019] FCA
1514
CORPORATIONS –allegations that two companies
contravened s 911A and s 1041H of the Corporations Act
2001 (Cth) and s 12DA and s 12DB(1)(e) of the Australian
Securities and Investments Commission Act 2001 (Cth) –
whether the companies conducted a business in this jurisdiction
without holding an Australian Financial Services Licence –
where financial services business promoted on two websites
accessible in this jurisdiction – where websites remained
accessible following the cancellation of each company's licence
– whether conduct of uploading accessible conduct to each
website was attributable to both companies – whether
representations accessible on website were false or misleading in
contravention of s 12DB(1)(e) of the Australian Securities and
Investments Commission Act 2001 (Cth) – whether
continued conduct of financial services business by first defendant
constituted misleading or deceptive conduct in contravention of s
12DA of the Australian Securities and Investments Commission
Act 2001 (Cth) and s 1041H of the Corporations Act
2001 (Cth) – contraventions established against first
defendant – no contraventions established against second
defendant
CORPORATIONS – whether third defendant aided, abetted,
counselled, procured or was otherwise knowingly concerned in the
first defendants' contraventions of s 12DB(1)(e) of the
Australian Securities and Investments Commission Act 2001
(Cth) – nature and extent of involvement –
assessment of pecuniary penalty
CORPORATIONS – whether second and fourth defendants should be
wound up on just and equitable grounds where no contraventions
established against them
CORPORATIONS – whether third defendant should be disqualified
from managing corporations – whether third defendant should
be permanently restrained from involvement in a financial services
business in this jurisdiction
EVIDENCE – where defendants fail to appear at trial –
where court satisfied the defendants are aware of the proceedings
the orders sought against them – consideration of the
inferences that may be drawn from the defendants' failure to
adduce evidence in respect of matters within their knowledge
Australian Securities and Investments Commission Act 2001
(Cth) ss 5, 12AC, 12BA, 12BB, 12DA, 12DB, 12GBA, 12GD, 12GH, 12GJ,
12GLD, 19, 77; Corporations Act 2001 (Cth) ss 9, 79, 206E,
461, 462, 464, 465A, 761A, 763A, 763B, 766A, 766C, 769B, 911A,
911D, 912A, 912D, 913B, 915B, 1041H, 1317QD, 1324; Trade
Practices Act 1974 (Cth) s 86, Pt VI; Treasury Laws
Amendment (Strengthening Corporate and Financial Sector Penalties)
Act 2019 (Cth) Schs 1, 2; Federal Court (Corporations) Rules
2000 (Cth) r 5.11
Ultra Tune Australia Pty Ltd v Australian Competition
and Consumer Commission [2019] FCAFC
164
CORPORATIONS – whether the appellant contravened cl
15(1)(b) of the Franchising Code (Schedule 1 to the Competition and
Consumer (Industry Codes – Franchising) Regulation 2014)
– ambiguity in cl 15(1)(b) – whether the disclosure
documents provided sufficient detail regarding expenditure –
no error found in appellant's contravention of cl
15(1)(b)
PENALTY – appeal against penalty – number of
contraventions – course of conduct and grouping of
contraventions– totality – seriousness of
contraventions – penalty reduced
Competition and Consumer (Industry Codes – Franchising)
Regulation 2014 (Cth) cll 6(1), 8, 8(1), 8(2), 8(3), 8(4), 8(5),
8(6), 13, 15, 15(1), 15(1)(a), 15(1)(b), 15(1)(b)(ii), 15(1)(c),
15(1)(d), 16(1), 16(1)(b), 17(1)(a), 17(1)(c)
Competition and Consumer Act 2010 (Cth) s 76(1)
Australian Competition and Consumer Commission v BlueScope
Steel Limited [2019] FCA
1532
PRACTICE AND PROCEDURE – suppression orders –
principle of open justice – meaning of "necessary"
in section 37AG(1) of the Federal Court of Australia Act
1976 (Cth) – where application for suppression order
made in respect of originating application and concise statement
– where civil proceeding commenced prior to commencement of
related criminal proceeding – application dismissed
proceeding involves alleged cartel conduct engaged in by BlueScope
and Mr Ellis
Federal Court of Australia Act 1976 (Cth), ss 37AF,
37AG(1)(a); Federal Court Rules 2011 (Cth), r 2.32
Jafari v 23 Developments Pty Ltd
[2019] VSCA 201
PARTNERSHIP – Existence – Nature of agreement
– Whether partnership agreement entered into by parties
– Agreement not consistent with intention to create a
partnership – Intention to enter into profit sharing
agreement only – Parties were not in a partnership.
CONTRACT – Termination or abandonment – Inability of
proposed vendors to deliver clear title to purchasers as required
pursuant to first agreement because mortgagee in possession
appointed – New agreement between purchasers and mortgagee in
possession – Whether first agreement abandoned or terminated
because it could not be performed – Whether first agreement
varied – No variation of first agreement – First
agreement abandoned or terminated.
TRADE PRACTICES – Misleading or deceptive conduct –
Whether representation as to ease with which properties could be
decontaminated was misleading or deceptive – Causation
– Whether respondents were induced by representation to
purchase properties – Fair Trading Act 1999 (Vic) s
9 – Trade Practices Act 1974 (Cth) s 52.
EQUITY – Vendor's lien – Whether holders of
vendor's lien entitled to interest – Matter not raised
before trial judge – No basis for claim to interest.
EQUITY – Trusts –Whether unit trust created by
applicant – Time of creation of unit trust by the applicant
– Whether company held properties as trustee of unit trust
before liquidation.
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.