In the media
Superfone to pay $300,000 for making unsolicited calls
and misleading consumers
The Federal Court has ordered telecommunications provider
Superfone to pay $300,000 in penalties for making false and
misleading representations and breaching laws designed to protect
consumers from unsolicited telemarketing sales, in proceedings
brought by the ACCC. More than 1400 consumers, including many
elderly people, were contacted by Superfone's telemarketing
agents (26 March 2021). More...
FE Sports to pay $350,000 penalty for resale price
maintenance
The Federal Court has ordered wholesale distributor B
& K Holdings (QLD) Pty Ltd, trading as FE Sports, to pay a
$350,000 penalty after it declared by consent that FE Sports
engaged in resale price maintenance in relation to cycling and
sporting products. In total, 246 dealers were affected (24 March
2021). More...
Warning to Google after advertiser used search engine to
mislead investors
The corporate regulator has warned Google to carefully
consider the implications of a court decision that found people
were misled into tipping money into high-risk investments after
following sponsored links in search results (23 March 2021).
More...
ASIC succeeds in Court action against Mayfair 101 for
misleading and deceptive advertising
The Federal Court has found companies in the Mayfair 101
Group made statements that were false, misleading or deceptive in
advertisements for its debenture products, following proceedings
brought by ASIC in April 2020. ASIC is seeking pecuniary penalties,
injunctions and corrective advertising (23 March 2021). More...
Full Federal Court ruling provides vital clarification
of the law on statutory unconscionable conduct
The Full Federal Court has upheld an appeal by the ACCC
and declared that Quantum Housing Group Pty Ltd engaged in an
unconscionable system of conduct in its dealings with investors
regarding the National Rental Affordability Scheme, in breach of
the Australian Consumer Law (22 March 2021). More...
ASIC bans Forex Capital Trading director Shlomo Yoshai
for 10 years after reports of 'Wolf of Wall Street'
culture
The ASIC has handed lengthy bans to the director and
former employees of an online foreign currency trader.
In May last year, ASIC cancelled ForexCT's financial services
licence after finding it had engaged in "unconscionable
conduct, misleading and deceptive conduct and a failure to manage
conflicts of interest" (17 March 2021).
More...
Two Propel-owned funeral homes pay penalties for alleged
misleading local ownership claims
WT Howard Funeral Services and Coventry Funeral Homes,
trading as Fitzgerald's Funerals, have each paid $12,600 in
penalties after the ACCC issued each of the businesses with an
infringement notice for allegedly making a false and misleading
representation about their ownership (17 March 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.
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.
Cases
Australian Competition and Consumer
Commission v Superfone Pty Ltd [2020]
FCA 278
CONSUMER LAW - contraventions of ss 18, 29(1)(h), (g) and (m), 76,
77, 78, 79 and 86 of the Australian Consumer Law
(ACL) - principles relevant to injunctive relief,
imposition of a pecuniary penalty, non-party consumer redress
orders and publication orders - whether appropriate to make
non-party consumer redress order under s 239 of ACL - not necessary
to individually identify which persons are non-party consumers or
the nature of loss or damage suffered - injunctive relief,
pecuniary penalty, non-party consumer redress orders and
publication orders made
Competition and Consumer Act 2010 (Cth); Evidence Act 1995 (Cth);
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth); Trade Practices Act 1974
(Cth); Trade Practices Amendment (Australian Consumer Law) Act (No
1) 2010 (Cth); Penalty Interest Rates Act 1983 (Vic); Treasury Laws
Amendment (2018 Measures No. 3) Bill 2018
Australian Competition and Consumer
Commission v B & K Holdings (Qld) Pty
Ltd [2021] FCA 260
COMPETITION LAW - resale price maintenance - admitted
contraventions - agreed penalties and other relief - pecuniary
penalty - declaratory relief - injunctive relief - adverse
publicity order - compliance program - whether orders sought by
agreement appropriate in the circumstances - agreed orders
appropriate
COMPETITION LAW - adverse publicity order pursuant to section 86D
of Competition and Consumer Act 2010 (Cth) - whether adverse
publicity order must include publication of advertisement -
unnecessary to resolve issue
Competition and Consumer Act 2010 (Cth), ss 48, 76, 80, 86C, 86D,
96
Federal Court of Australia Act 1976 (Cth)
Australian Securities and Investments
Commission v Mayfair Wealth Partners Pty Ltd (No
2) [2021] FCA 247
CORPORATIONS - representations made to investors in promissory
notes - representations made in promotional and marketing materials
- representation that notes were comparable to, and of similar risk
profile to, bank term deposits - representation that principal
would be repaid in full - representation that notes were
specifically designed for investors seeking certainty and
confidence in investments and notes therefore carried no risk of
default - representation that the "M Core Fixed Income
Notes" were fully secured financial products - assessment of
the terms of the promissory notes - assessment of expert evidence
as to security position - assessment of report of provisional
liquidators of the third defendant
CORPORATIONS - false, misleading or deceptive conduct -
representations contravened s 1041H(1) of the Corporations Act 2001
(Cth) and ss 12DA(1), 12DB(1)(a) and 12DB(1)(e) of the Australian
Securities and Investments Commission Act 2001 (Cth) - relevant
principles concerning false, misleading or deceptive conduct -
principles relevant to declarations - declarations made that
conduct was in contravention of s 1041H(1) of the Corporations Act
2001 (Cth) and ss 12DA(1), 12DB(1)(a) and 12DB(1)(e) of the
Australian Securities and Investments Commission Act 2001
(Cth)
Australian Securities and Investments Commission Act 2001 (Cth), ss
12BB(1), 12DA(1), 12DB(1)(a), 12DB(1)(e), 12BAB(1)(b), 12BAB(7)(b),
12GBA, 12GD, 12GLA(2)(c), 12GLA(2)(d) and 12GLB
Corporations Act 2001 (Cth), ss 766C(1)(b), 769C, 1101B(1)(a),
1041H(1), 1041H(2)(a) and 1324
Federal Court of Australia Act 1976 (Cth), s 21
Australian Competition and Consumer
Commission v Quantum Housing Group Pty
Ltd [2021] FCAFC 40
CONSUMER LAW - where company admitted to unconscionable conduct by
a system or pattern of behaviour in contravention of s 21
Australian Consumer Law (ACL) - where penalties
and declarations agreed with regulator - where primary judge found
the majority in Australian Securities and Investments
Commission v Kobelt [2019] HCA 18 considered s 12CB of
the Australian Securities and Investments Commission Act 2001 (Cth)
requires exploitation of some disadvantage or vulnerability by a
stronger party and therefore s 21 of the ACL also requires those
features to be present in the conduct - primary judge not satisfied
investors, to whom the company's conduct was directed, could be
characterised as vulnerable or exploited - primary judge found no
contravention of s 21 - whether judge found exploitation of a
special disadvantage in the equitable sense is required under s 21
- whether Kobelt, precedent or statutory interpretation requires
that exploitation or taking advantage of some pre-existing
vulnerability, disadvantage, or disability is a necessary element
of statutory unconscionability under s 21 ACL - appeal
allowed.
Australian Securities and Investments Commission Act 2001 (Cth) ss
12CA, 12CB, 12CC
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian
Consumer Law) ss 20, 21, 22
Trade Practices Act 1974 (Cth) ss 51AA, 51AB, 51AC, 52A
Good Living Company Pty Ltd as trustee
for the Warren Duncan Trust No 3 v Kingsmede Pty
Ltd [2021] FCAFC 33
CONSUMER LAW - appeal - where appellants provided security for bank
guarantee required by lease between a related company and the
respondents - where respondents called on bank guarantee prior to
entry into deed of settlement and release - where respondents were
unaware that appellants had provided security - where respondents
received and retained moneys provided after bank guarantee was
called - whether the calling on and collecting of money the subject
of the bank guarantee constituted unconscionable
conduct in contravention of s 20 and s 21 of Sch 2 to the
Competition and Consumer Act 2010 (Cth) - whether primary judge
erred in not finding unconscionable conduct - whether primary judge
erred in analysis of s 20 and s 21 - whether primary judge failed
to consider pleaded case - whether the primary judge erred in not
finding special disadvantage - whether the primary judge erred by
not finding entitlement to relief - appeal dismissed
Australian Securities and Investments Commission Act 2001 (Cth) s
12CB
Competition and Consumer Act 2010 (Cth) Sch 2, ss 20, 21, 22, 236,
237
Trade Practices Act 1974 (Cth) s 51AC
Explanatory Memorandum, Competition and Consumer Legislation
Amendment Bill 2010 (Cth)
Explanatory Memorandum, Trade Practices Amendment (Australian
Consumer Law) Bill (No 2) 2010 (Cth)
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.