In the media
Former Australian Bight Abalone CEO convicted over false
and misleading information
Mr Andrew Ferguson, the former Chief Executive Officer of abalone
farmer, Australian Bight Abalone (ABA), was found
guilty on 17 counts related to providing false or misleading
information to the ABA Board of Directors and prospective investors
following a jury trial in the District Court of South Australia (19
January 2018).
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Allianz, Suncorp to repay more than $60m over
unnecessary car insurance
Insurance giants Allianz and Suncorp will refund a combined $65.2
million to more than 100,000 customers who were sold valueless
add-on insurance through car dealerships (16 January 2018).
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Makers of Nurofen ran 'misleading and deceptive'
campaign against Panadol: court
Nurofen is better than paracetamol for common headaches, declared
the advertisements in women's lifestyle magazines. The Federal
Court has found that claim to be misleading and deceptive, after
two pharmaceutical giants went head-to-head in a two-year legal
battle (14 January 2018).
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Thousands claim compensation for misleading Nurofen
products
Thousands of compensation claims have been lodged over Nurofen
products that were purported to tackle specific types of pain but
which all contained the same active ingredient (11 January 2018).
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39 per cent increase in consumer guarantee reports in
2017
More than 29,000 people reported consumer guarantee issues to the
ACCC in 2017, with half noting problems getting remedies for faulty
automotive, whitegoods or electronics products. Issues with faulty
products and businesses being misleading about consumer rights are
some of the most common reasons for people to contact the ACCC (08
January 2018).
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ACCC's priorities for 2018: cartels
In an
interview with the Australian Financial Review
(AFR), ACCC Chairman Rod Sims has indicated that
"2018 will be a very big turning point for cartel
enforcement and cartel deterrence". In particular, Mr
Sims indicated that there are likely to be three to four
domestic-based criminal cartel actions in 2018, with the
possibility of seeking jail sentences for individual executives. Mr
Sims did not identify the companies involved or the sectors in
which they operate, but commented that they varied in size (08
January 2018).
More... [subscription access]
Decision published in ACCC's detergent cartel
case
Justice Wigney handed down his decision on 22 December, finding
that the ACCC had not discharged its burden of proving, on the
balance of probabilities, that the respondent had entered into the
claimed arrangement or understanding. The reasons for judgment have
now been released and show that Justice Wigney preferred the
economic evidence suggesting the conduct resulted from oligopoly
behaviour rather than agreement. More...
Full Federal Court of Australia has upheld the Federal
Court Valve case
The Full Federal Court of Australia has upheld the finding of a
single judge of the Federal Court that US-based Valve Corporation
engaged in misleading or deceptive conduct and made false or
misleading representations about the availability of rights under
the Australian Consumer Law in Valve's subscriber agreements
and refund policies. The Court also dismissed the ACCC's
allegation that Cussons had arrived at an understanding with the
other laundry detergent manufacturers, which substantially lessened
competition in the market for the supply of laundry detergent (22
December 2017).
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ACCC warns about Digital Sourcing, formerly
Luxstyle
The ACCC has issued a Public Warning Notice about the conduct of
overseas based online retailer Digital Sourcing ApS
(Digital Sourcing), formerly Lux International
Sales ApS (Luxstyle). The ACCC has issued this
notice because it has reasonable grounds to suspect that the
conduct of Digital Sourcing may breach the Australian Consumer Law
by misleading consumers and asserting a right to payment for
unsolicited goods, and considers that it is in the public interest
to inform consumers about this conduct (20 December 2017).
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Belkin undertakes to honour lifetime
warranties
The ACCC has accepted a court-enforceable undertaking from consumer
electronics manufacturer Belkin to honour claims under its lifetime
warranty policies for the lifetime of the original purchaser.
Belkin has acknowledged that its lifetime warranty representations
may have breached the Australian Consumer Law, which prohibits
misleading or deceptive conduct and false or misleading
representations about the effect of a warranty or guarantee (19
December 2017).
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WA building company amends unfair
contracts
Perth based building company, 101 Residential Pty Ltd, has amended
its standard home building contract following ACCC concerns that it
contained unfair terms and made false or misleading
representations. Between October 2014 and August 2017, 101
Residential's building contract contained non-disparagement
clauses that allowed it to prohibit customers from publishing any
unapproved information about the company, including online reviews
(15 December 2017).
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Optus in court for allegedly misleading 20,000 customers
about moving to the NBN
The ACCC has instituted proceedings in the Federal Court against
Optus Internet Pty Ltd (Optus), alleging it misled
customers about the need to move quickly from its existing HFC
network to the National Broadband Network (NBN).
The ACCC alleges that between October 2015 and March 2017, Optus
made false and misleading representations by writing to its
customers to advise it would disconnect their HFC service within a
specified time period as the NBN was coming to their area (15
December 2017).
More...
Fletcher & Parker (Balwyn) Pty Ltd - Court
outcome
A real estate agency in Melbourne's east will pay $880,000
after the Federal Court of Australia found it engaged in misleading
or deceptive conduct and making false or misleading representations
about property sales (14 December 2017).
More...
ACCC releases second interim report as part of Gas
Inquiry
The ACCC has released its 'second interim report as part of its
inquiry in Australia's wholesale gas supply arrangements. When
releasing the report, ACCC Chair, Rod Sims, observed that: Despite
increased supply providing important short-term improvements in
conditions, the market is still not operating as well as it could.
Prices remain higher than they would be in a well-functioning and
competitive market'.
More...
More...
In practice and courts, published reports
Small business collective bargaining guidelines
consultation
The Australian Competition and Consumer Commission is seeking
feedback on new guidelines for small business collective
bargaining. The guidelines are for small businesses, including
farmers, to assist their understanding of the authorisation and
notification processes for obtaining ACCC approval for collective
bargaining and boycotts. Submissions close on 23 February 2018.
More...
Cases
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1CONSUMER LAW – whether the manufacturer of Nurofen engaged
in conduct which was misleading or deceptive or likely to mislead
or deceive or made false representations by conducting a
comparative advertising campaign in which it claimed that Nurofen
provided faster and more effective relief from the pain caused by
common headaches than does Panadol in circumstances where:
- Only one clinical trial suggested that it did provide faster and more effective pain relief for common headaches than does Panadol;
- Two other studies conducted subsequently did not replicate the results of the one positive clinical trial; and
- The authors of three meta-analyses concluded that no authoritative comparison was possible in the present state of scientific knowledge.
Australian Competition and Consumer Commission v
Colgate-Palmolive Pty Ltd (No 4) [2017] FCA
1590
TRADE PRACTICES – competition law – restrictive trade
practices – cartel conduct – whether Respondent
contravened ss 44ZZRK or 45(2) of the Trade Practices Act
1974 (Cth) – where Respondent and two other
manufacturers and wholesale suppliers of laundry detergent in
Australia transitioned to ultra concentrated laundry detergent and
ceased supplying retailers with standard concentrates at about the
same time – whether Respondent entered into an arrangement,
or arrived at an understanding, with the other suppliers, in
relation to the transition that included exclusionary provisions,
or provisions that had the purpose, or had or were likely to have,
the effect of substantially lessening competition in the market for
laundry detergent in Australia – parallel conduct –
exclusionary provisions – Jones v Dunkel inferences.
Held: applicant did not discharge its burden of proving on the
balance of probabilities that the respondent entered into any such
arrangement or arrived at any such understanding.
Director of Consumer Affairs Victoria v Domain Register Pty
Ltd [2017] FCA 1603
CONSUMER LAW – misleading or deceptive conduct –
knowledge to be imputed to target audience –respondent sent
unsolicited notices to businesses offering to register a
".com" domain name equivalent to their existing
".com.au" domain name – notices similar in
appearance to an invoice– whether conduct in sending notices
constitutes misleading or deceptive conduct in breach of s 18 of
the Australian Consumer Law (ACL) – conduct likely to mislead
or deceive – whether "unsolicited services" in s
40(3) of the ACL includes services to be provided in the future
– no breach of s 40(3) of ACL. Competition and Consumer
Act 2010 (Cth); Corporations Act 2001 (Cth);
Trade Practices Act 1974 (Cth); Competition and
Consumer Regulations 2010 (Cth); Trade Practices Amendment
(Australian Consumer Law) Bill (No 2) 2010; Australian
Consumer Law and Fair Trading Act 2012 (Vic).
Mastec Australia Pty Ltd v Trident Plastics (SA) Pty Ltd (No
2) [2017] FCA 1581
CONTRACTS - First Applicant contracted with a company to design and
manufacture tools for the production of components of mobile
garbage bins – First Respondent, which was related to the
company, later manufactured and sold mobile garbage bins making use
of the designs for the First Applicant's product –
determination of content of contract – whether there was an
implied term as to the beneficial ownership of computer aided
design drawings – whether there was an implied term as to the
confidentiality of the drawings.
EQUITY – duty of confidence – whether duty
exists.
CONSUMER LAW – misleading or deceptive conduct –
alleged contraventions of ss 18(1) and 29(1)(g) and (h) of the
Australian Consumer Law (ACL) – whether
First Respondent's promotional material contravened the ACL
– whether First Respondent engaged in misleading or deceptive
conduct by passing off – accessorial liability of Second
Respondent for alleged contraventions.
Australian Consumer Law ss 2(1), 18, 29; Competition
and Consumer Act 2010 (Cth) Sch 2; Copyright Act 1968
(Cth) s 35(6); Trade Practices Act 1974 (Cth) ss 52,
53.
Berry v CCL Secure Pty Ltd [2017] FCA 1546
TRADE PRACTICES – deceit – misleading or deceptive
conduct – agency agreement between applicants and respondent
for supply of polymer product for printing banknotes to Government
of Nigeria – where agency agreement gave applicants right to
commission for invoice sales of polymer – whether applicants
signed letter terminating agency on basis of representations by
respondent that, first, a new agency agreement would be executed
between the parties on existing terms and or secondly, if
applicants signed a second document to develop in partnership a
production facility in Nigeria it would be executed by respondent
immediately – whether representations made by respondent
– whether representations constituted misleading or deceptive
conduct and or unconscionable conduct – whether, if
applicants did not sign termination letter, respondent would have
exercised powers under agreement to unilaterally terminate agency
agreement without cause. Australian Consumer Law ss 5, 18,
20; Competition and Consumer Act 2010, (Cth) s 5, Sch
2.
Pokemon Company International, Inc. v Redbubble Ltd [2017] FCA
1541
INTELLECTUAL PROPERTY –infringement of an artistic work
– requirement of original artistic work – presumption
of ownership – authorisation of infringement - fair dealing
– parody or satire – unauthorised reproduction –
declaratory relief.
CONSUMER LAW – misleading and deceptive conduct
–representation of sponsorship, approval or affiliation
– effect of conduct on class of persons – application
allowed.
Competition and Consumer Act 2010 (Cth); Copyright
Act 1968 (Cth); Copyright Amendment Act 2006 (Cth);
Copyright (International Protection) Regulations 1969
(Cth).
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA
1534
INDUSTRIAL LAW – alleged contraventions of s 340(1) Fair
Work Act 2009 – whether there was a workplace right
– whether complaint or inquiry about bonuses is a workplace
right – whether complaint or inquiry about request to a third
party is a workplace right - whether workplace right was exercised
or proposed to be exercised – whether applicant was
discriminated against - whether exercise of workplace right was a
substantive or operative reason for dismissal – where
decision maker gave no direct testimony in the proceedings –
whether second respondent involved in the contravention.
INDUSTRIAL LAW – alleged contravention of ss 44(1) and 117
Fair Work Act 2009 – refusal to pay statutory
entitlements – evidence that entitlements deliberately
withheld – whether second respondent involved in
contravention.
CONSUMER LAW – alleged contravention of s 31 Australian
Consumer Law – whether misleading representations were
made during offer of employment –whether alleged
representations were reasonable.
CONTRACTS – contract of employment - whether term of good
faith and reasonableness was implied in contract – whether
contract breached by failing to pay bonuses and commissions –
whether contract breached by failing to set budget targets –
whether contract breached for failing to provide additional
incentive bonus.
CONTRACTS – cross claim – whether payment to applicant
was a loan or advance– whether payment was a discretionary
bonus.
COMPENSATION – claim for loss of opportunity to work for
first respondent – whether employment would have continued -
claim for loss of opportunity to work at former employer –
claim of non-economic loss for hurt and humiliation - whether post
dismissal actions of employer are relevant to compensation.
Competition and Consumer Act 2010 (Cth) Sch 2,
Australian Consumer Law ss 4, 31, 224, 236.
CONSUMER LAW – admitted contraventions of Australian
Consumer Law – misleading or deceptive conduct and false or
misleading representations – real estate agents underquoting
sale price estimates to potential property buyers – whether
the proposed orders are appropriate in the circumstances –
pecuniary penalty – declaratory relief – adverse
publicity order – compliance program – costs.
Competition and Consumer Act 2010 (Cth); Australian
Consumer Law and Fair Trading Act 2012 (Vic); Estate
Agents Act 1980 (Vic).
Skinner v Redmond Family Holdings Pty Ltd [2017] NSWCA
329
TRADE PRACTICES – misleading and deceptive conduct –
whether failure to disclose creditors' unilateral right to
convert debts to equity was misleading and deceptive –
whether reasonable expectation on the part of the respondent as
prospective investor that convertibility of loans to equity would
be disclosed – where failure to disclose occurred before
respondent acquired its shareholding in companies – where
purported conversion of loans to equity diluted respondent's
shareholding significantly.
TRADE PRACTICES – misleading and deceptive conduct –
whether non-disclosure of convertibility of loans to equity was
causative of respondent's decision to acquire shares in
companies.
TRADE PRACTICES – misleading and deceptive conduct –
whether primary judge erred in apportioning responsibility for
misleading and deceptive conduct equally between appellants.
APPEAL AND NEW TRIAL – application to adduce further
evidence – whether substantial injustice to the appellants if
unable to rely on further evidence – where evidence was
available by reasonable diligence to be adduced at trial –
where high degree of probability of a different result at
trial.
Royce v Youi Pty Ltd [2018] QCAT 005
INSURANCE – MOTOR VEHICLES – INSURANCE OF MOTOR
VEHICLES FOR LOSS OR DAMAGE – where contractual discretion to
declare vehicle total loss – where vehicle so declared
– where insured indemnified according to insurance policy
– where vehicle written off – where vehicle listed on
written-off vehicle register – where vehicle not
re-registrable for public road use – where vehicle salvage
sold at public auction – where insured informed of
registration preclusion before auction – where insured bought
vehicle salvage at auction – where insured believed removal
of vehicle from register achievable for error – where insurer
denied error – where vehicle not removed from register
– whether vehicle wrongly declared total loss and written off
– whether insurer breached insurance policy and duty of
utmost good faith to insured.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION – where
insured a consumer – where consumer claim both liquidated and
un-liquidated – where Australian Consumer Law applies –
where contract of insurance excluded from consumer guarantee
provisions of Australian Consumer Law – where no consumer
guarantee remedy – where indemnity within definition of a
service under Australian Consumer Law – where contract of
insurance not excluded from misleading and deceptive conduct and/or
unconscionable dealing provisions of Australian Consumer Law.
TRADE PRACTICES – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – where misleading and deceptive
conduct not alleged by insured – where insured alleged
insurance policy voidable or void for unconscionable conduct
– whether insurer acted unconscionably.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS –
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether claim
for unliquidated damages for breach of common law implied term of
due care and skill in provision of services within jurisdiction of
the Queensland Civil and Administrative Tribunal.
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.