In the media
Kogan tax time promotion found to be false or
misleading
The Federal Court has found online retailer Kogan
Australia Pty Ltd (Kogan) breached the Australian Consumer Law by
making false and misleading representations about a tax time sales
promotion, in proceedings brought by the ACCC (17 July 2020).
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Medibank to pay $5 million in penalties for
misrepresentations to members about benefits
The Federal Court has ordered that Medibank Private
Limited trading as 'ahm Health Insurance' (Medibank) pay $5
million in penalties for making false representations to members
about the benefits offered by their ahm health insurance policies,
in breach of Australian Consumer Law (16 July 2020).
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ACCC proposes to allow supermarkets to continue
cooperating on grocery supply
Supermarket operators will be able to continue working
together until March 2021 to ensure the continued supply of food
and groceries during the COVID-19 pandemic, under the ACCC's
draft determination (15 July 2020).
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CHOICE investigation: Mosaic Brands sold mislabelled,
ineffective hand sanitiser
Testing at Australia's National Measurement Institute
at CHOICE's request reveals that the 70%-alcohol label claim on
the sample tested was far from the truth. Under Australian Consumer
Law, it's illegal to sell products with misleading or deceptive
label claims (15 July 2020).
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Tesla Autopilot deemed deceptive to consumers
Germany has become the first country to ban Tesla's
'Autopilot' and 'Full Self Driving' labels, with
both are viewed as "misleadingly prohibited" and
providing false promises to customers (15 July 2020).
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BDO administrators take control of Wirecard's Aussie
arm
Finstro claims that it was misled by Wirecard into
believing that the German-owned subsidiary could help it launch the
card product by March 2019.Wirecard Australia is defending the
claim, saying in court documents that Finstro was not able to issue
a prepaid card because it did not hold a financial services licence
(14 July 2020).
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Allianz add-on customers sue for 'hundreds of
millions'
In the court papers filed, the firm accuses Allianz and
its subsidiary of breaching the ASIC Act and Corporations Act. It
says the insurer had engaged in "misleading or deceptive
conduct and unconscionable conduct" to sell a range of car and
motorcycle add-ons, citing evidence that was presented to the Hayne
royal commission in 2018 (14 July 2020).
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Westpac faces potential class action over car loans that
allowed dealers to inflate interest rates
Westpac is facing a potential class action on behalf of
thousands of Australians who took out car loans under a
since-banned scheme that allowed dealers to set exorbitant interest
rates (14 July 2020).
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APRA required to improve transparency of music licensing
and royalties
Collective management of copyright is generally more
efficient than songwriters having to independently negotiate and
collect royalties directly from each business that plays their
songs," ACCC Deputy Chair Mick Keogh said. However, APRA's
exclusivity provisions can mean higher fees for some businesses
that want to play music (13 July 2020).
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Remote food price inquiry hears of rotten meat being
refrozen and sold
Some of the poorest communities in Australia paying double
prices for basic items like nappies and bananas, a parliamentary
inquiry has heard. The high cost of basic shopping items in remote
Australia is attributed to a range of factors including transport
costs, lack of competition and sometimes unscrupulous behaviour (11
July 2020).
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TWU enlists NRFA over ACCC cartel warning
The Transport Workers' Union's (TWU's) butting
heads with the Australian Competition and Consumer Commission
(ACCC) is showing few signs of being resolved amicably (10 July
2020).
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Private and public hospitals can continue cooperating on
COVID-19
Allowing the private and public systems, and state
governments, to coordinate will help ensure an efficient and
effective allocation of hospital resources and services during the
pandemic. For example, health providers would be able to discuss
expected capacity and demand for services, jointly procure and
distribute medical equipment and supplies, and share staff (09 July
2020).
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Colliers International (Victoria) Pty Ltd - Commencement
of action
The Director of Consumer Affairs Victoria has started
legal action against estate agency Colliers International
(Victoria) Pty Ltd for alleged underquoting and making misleading
representations about property sale prices (09 July 2020).
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Aussies 'misled' by white teeth claim
In papers filed with the Federal Court, Procter and Gamble
says no reliable scientific data establishes the toothpaste removes
yellow stains that have accumulated over the last 10 years. Each of
Colgate's alleged misrepresentations about its product were
misleading or deceptive or likely to mislead or deceive, P&G
says. P&G says it lost sales, consumer brand equity and
consumer confidence as a result of Colgate's teeth-whitening
claims (08 July 2020).
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Quantum Housing decision appealed over unconscionable
conduct
The ACCC has filed an appeal to the Full Federal Court
against a recent first instance decision of the Court, arguing the
trial judge should have found Quantum Housing Group engaged in
unconscionable conduct in in its dealings with investors regarding
the National Rental Affordability Scheme (NRAS) in breach of the
Australian Consumer Law (08 July 2020).
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Freedom Furniture pays penalties for allegedly
misleading consumers about rights to refunds
Steinhoff Asia Pacific Pty Ltd (Steinhoff), trading as
Freedom Furniture, has paid penalties totalling $25,200 after the
ACCC issued it with two infringement notices for alleged false or
misleading representations to customers about their consumer
guarantee rights (07 July 2020).
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Megasave Couriers and Gary Bourne allegedly misled
franchisees
The ACCC has instituted proceedings against franchisor
Megasave Couriers Australia Pty Ltd (Megasave) in the Federal
Court, alleging that it misled prospective franchisees with false
or misleading promises of guaranteed minimum weekly payments and
annual income if they purchased a Megasave courier franchise (06
July 2020).
More...
No evidence: ICA rejects 'price gouging'
claims
The Insurance Council of Australia has pushed backed calls
from consumer advocates for a national pricing monitor, saying
there is no evidence to back up their claims of "price
gouging" by insurers (06 July 2020).
More...
Practice and Regulations
ACCC: COVID-19 (coronavirus) information for business
2020
As a first step, we encourage businesses to contact
customers wherever possible to advise them of how you are handling
various circumstances. In doing so, businesses should continue to
be mindful of their obligations under the Australian Consumer Law,
which include:
to not
mislead customers, including about what the customer is
entitled to under their terms and conditions
to not
act unconscionably when dealing with their customers
to not seek to rely on
unfair terms in standard form contracts with customers.
ACCC consultations
Consumer Data Right - Energy rules framework consultation - closes
28 August
Consumer Data Right - Consultation on draft Rules - closes 20
July
COVID Collaboration & Competition Policy:
Authorisation vs Forbearance as Crisis Responses
David Howarth & Harriet Alexander
Discussion of Competition and Consumer Protection Law issues
Australian Business Law Review, Vol 48, Part 2
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 Kogan
Australia Pty Ltd [2020] FCA
1004
CONSUMER LAW – false and misleading statements and
misleading and deceptive conduct under the Australian Consumer Law
– where respondent advertised 10% coupon code discount for
limited period – where respondent increased prices prior to
promotion and decreased prices after promotion – promotion
advertised through electronic direct marketing material and SMS
messages – promotion advertised in parallel with two-price
comparison promotions – statements in marketing material
conveyed representation that consumers would receive genuine 10%
discount by reference to the price at which goods were advertised
for sale for a "reasonable period" before and after the
promotion – representations false and misleading and
respondent's conduct misleading and deceptive in respect of a
subset of products to which the coupon code promotion applied
Competition and Consumer Act 2010 (Cth) s 155, Sch 2, Australian
Consumer Law (Cth) ss 18, 29; Evidence Act 1995 (Cth) s 140; Trade
Practices Act 1974 (Cth)
Barbour v Autosports Five Dock Pty Ltd
[2020] NSWCATAP 141
CONSUMER CLAIM – defective motor vehicle –
whether the Tribunal erred in determining whether the application
was brought within the limitation period – meaning of when
causes of action "first accrued" under the Fair Trading
Act 1987 – claim for refund upon rejection of goods under the
Australian Consumer Law (NSW) – entitlement to reject goods
in "rejection period" – factors relevant to
determining when rejection period ends
Australian Consumer Law (NSW); Civil and Administrative Act 2013
(NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Consumer
Claims Act 1998 (NSW) (repealed); Consumer Guarantees Act 1993 (New
Zealand); Fair Trading Act 1987 (NSW); Trade Practices Act, 1974
(Cth)
The Appeal Panel held at [35] that the Tribunal needed to consider
the time the first accrual of the following causes of action for
loss and damage, in respect of a claim for a specified sum pursuant
to s 79E(1)(a) of the FTA: (3) Under the now replaced sections of
the FTA for damages under s 68 for contraventions of s 42 (
misleading and deceptive conduct ) and s 44(a) (false
representation about quality or composition of goods) of the
FTA.
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.