In the media
Freedom Foods, Blue Diamond head to US arbitration
The Federal Court of Australia has rejected legal
proceedings brought by Freedom Foods Group against Blue Diamond
Growers and ruled the remaining proceedings must head to
arbitration in the US. FFG countered, alleging misleading and
deceptive conduct by Blue Diamond having not acted in good faith
under the franchising code and unconscionable conduct in breach of
Australian consumer law (10 March 2021). More...
Visa undertakes to address competition concerns over
debit card payments
The ACCC has accepted a court-enforceable undertaking from
Visa AP (Australia) Pty Ltd and Visa Worldwide Pte Limited
(together, Visa) in relation to concerns that Visa may have limited
competition in relation to debit card acceptance through its
dealings with large merchants (10 March 2021). More...
Caravan park operation to pay $2.3m after losing High
Court appeal
Companies operating a NSW Tweed River area caravan park
have lost an appeal in the High Court after being ordered to pay
more than $2.3 million in compensation plus interest to consumers
relating to the sale of waterfront villas as "permanent
residences". In 2019, the Supreme Court found that the
defendant companies had engaged in misleading and deceptive conduct
and that all three defendants had engaged in unconscionable conduct
(09 March 2021). More...
Super fund accused of 'deceptive' insurance
conduct
The corporate regulator has filed civil penalty
proceedings against Statewide Superannuation, alleging it engaged
in "misleading or deceptive correspondence" when 12,500
members were contacted about group insurance they supposedly held
through the financial services provider (08 March 2021). More...
Financial advice firm hit with $1.4m penalty
A financial advice firm and its sole director have been
hit with a $1.4 million penalty for engaging in false and
misleading conduct. These penalties follow the Federal Court's
22 November 2019 judgment, which found that Dover engaged in false,
misleading or deceptive conduct when it provided a Client
Protection Policy to 19,402 clients (05 March 2021). More...
Court finds Megasave and Gary Bourne misled prospective
franchisees
The Federal Court has declared that Megasave Couriers
Australia Pty Ltd (Megasave) breached the
Australian Consumer Law by making false or misleading
representations to prospective franchisees, in proceedings brought
by the ACCC. Megasave's sole director Gary Bourne admitted that
he was knowingly concerned in the conduct (02 March 2021). More...
ASIC to offer immunity for misconduct informers
The Australian Securities and Investments Commission will
offer immunity to people who inform the regulator about misconduct
they have engaged in with others and are prepared to co-operate on
investigations and court action (01 March 2021). More...
Practice and Regulation
ACCC Feedback: Choice and competition in internet
search and web browsers
The ACCC is seeking submissions from consumers and
industry participants about choice screens, which give users a
choice of internet search services on mobiles and tablets, rather
than a pre-selected search service, and about the supply of web
browsers in Australia. The submissions to an issues paper, will inform an upcoming report
on the impact of default settings and pre-installation of search
services and web browsers on consumer choice and competition.
Submissions to the issues paper close on 15 April 2021. More...
Cases
Australian Securities and Investments
Commission v TAL Life Limited (No
2) [2021] FCA 193
CORPORATIONS - misleading or deceptive conduct -financial products
- insurance - allegation that insurer had misled insured by making
representations about insurer's right to delay the processing
of the insured's claim and to withhold benefits under the
policy until the insured provided an executed authority enabling
the insurer to obtain and access the insured's medical records
and Medicare and Pharmaceutical Benefits Scheme claims information
- whether representation was made - whether representation was
false or misleading - whether representation contravened s 1041H(1)
of the Corporations Act 2001 (Cth) - whether representation
contravened ss 12DA(1) and 12BD(1) of the Australian Securities and
Investments Commission Act 2001 (Cth) - whether conduct was in
connection with the supply of financial services - whether conduct
was in relation to financial services - meaning of "financial
services" - whether representation was made in connection with
the issue of the policy - whether the process of claims handling is
a service otherwise supplied in relation to the policy
INSURANCE - whether insurer breached the duty of utmost good faith
under s 13 of the Insurance Contracts Act 1984 (Cth) - where
insured made an innocent non-disclosure and insurer avoided the
policy - where insurer did not give the insured any notice of the
investigation into the validity of her policy and did not give her
an opportunity to address the insurer's concerns - where
insurer alleged in policy avoidance letter that insured had
breached her duty of good faith- - where insurer threatened in
policy avoidance letter to seek recovery of amounts paid under the
policy
HIGH COURT AND FEDERAL COURT - jurisdiction of the Federal Court -
power to award declaratory relief - whether Australian Securities
and Investments Commission lacks standing to seek declaratory
relief for breach of s 13(2) of the Insurance Contracts Act 1984
(Cth)
CONSTITUTIONAL LAW - judicial power of the Commonwealth -
requirement for a "matter" - whether there is a
"matter" before the Court - where parties to insurance
contract agreed in settlement deed that contract was avoided ab
initio -- whether ASIC lacks standing to seek declaratory relief
for breach of s 13(2) of the Insurance Contracts Act 1984
(Cth)
Australian Securities and Investments Commission Act 2001 (Cth) ss
8(1), 12BA(1), 12BAA(7), 12BAB, 12DA(1), 12DB(1)
Corporations Act 2001 (Cth) s 1041H(1); Federal Court of Australia
Act 1976 (Cth) ss 5, 21, 23
Insurance Contracts Act 1984 (Cth) ss 13, 11A, 11B, 75A(1);
Judiciary Act 1903 (Cth) s 78B
Freedom Foods Pty Ltd v Blue Diamond
Growers [2021] FCA
172
ARBITRATION - international arbitration - arbitration agreement -
application for stay of the proceeding pursuant to s 7(2) of the
International Arbitration Act 1974 (Cth) - where the contract
between the parties contained an arbitration agreement requiring
disputes to be arbitrated in California - where the respondent
sought a stay of the proceeding pursuant to s 7(2) - where the
applicants contended that the arbitration agreement was invalid or
of no effect by virtue of cl 21 of the Franchising Code of
Conduct
CONSUMER LAW - franchise - Franchising Code of Conduct - where the
first applicant and the respondent entered into a License Agreement
for the manufacture, distribution and sale of certain almond milk
products in Australia - whether the License Agreement constituted a
"franchise agreement" for the purposes of the Franchising
Code of Conduct
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer
Law, ss 18, 21, 134; International Arbitration Act 1974 (Cth), ss
3, 7; Competition and Consumer (Industry Codes-Franchising)
Regulation 2014 (Cth), Sch 1
Australian Securities and Investments
Commission v Dover Financial Advisers Pty Ltd (No
3) [2021] FCA 170
CONSUMER LAW - pecuniary penalty for infringement of s 12DB(1)(i)
of the Australian Securities and Investments Commission Act 2001
(Cth) - appropriate approach to assessment of civil penalty -
whether a single penalty is required to be imposed for each
contravening act - the circumstances in which an aggregate penalty
may be ordered for multiple contraventions - relevance of
contrition to deterrence - relevance of damage to health and
reputation
Australian Securities and Investments Commission Act 2001 (Cth) ss
12BG, 12DA(1), 12DB(1)(i), 12GBA
Competition and Consumer Act 2010 (Cth) s 76
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian
Consumer Law) s 224
Corporations Act 2001 (Cth) ss 912A, 917D, 1041H(1)
Director, Consumer Affairs Victoria v
Vic Solar Pty Ltd (No 3) [2021] FCA
171
CONSUMER LAW - declaratory relief - appropriate form of declaratory
relief
Australian Consumer Law ss 18, 21, 29, 73, 74, 76, 78, 79, 84 and
86; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 8;
Competition and Consumer Act 2010 (Cth) s 131
Between June 2014 and December 2018, the First Respondent engaged
in conduct, in trade or commerce, in contravention of ss 18 and 29(1)(e) of the Australian Consumer Law by
reason that its agents distributed to consumers a Community Bulk
Buy brochure that contained representations that purported to be
testimonials in relation to the First Respondent's solar PV
systems and no evidence was adduced to prove that the
representations were not false or misleading.
In the Liability Judgment I concluded that the pleading contained
an unintended error and should have alleged a contravention of s
29(1)(h) (at [114]). Further, even if such a representation had
been pleaded and found, it would have involved a contravention of s
29(1)(g), not 29(1)(h).Having regard to the above matters, it has
been necessary to re-frame substantially the declarations proposed
by the applicant into an appropriate form.
Ethicon Sarl v
Gill [2021] FCAFC 29
CONSUMER LAW - defective goods - urogynaecological medical devices
- whether primary judge erred in finding safety of devices not such
as persons generally were entitled to expect - whether primary
judge erred in finding devices not of merchantable or acceptable
quality, or not reasonably fit for purpose within meaning of Trade
Practices Act 1974 (Cth) or the Australian Consumer Law - whether
primary judge erred in finding respondents' damage caused by
defect
CONSUMER LAW - misleading or deceptive conduct - information in
connection with devices, instructions for use and marketing -
whether primary judge erred in finding appellants engaged in
misleading or deceptive conduct - whether primary judge erred in
finding third respondent's damage caused by misleading or
deceptive conduct
NEGLIGENCE - medical devices - duty of care - whether primary judge
erred in finding appellants breached duty of care - inadequate
pre-market and post-market evaluations of safety of devices -
inadequate warnings of material risks of devices - standard of care
- breach - regulatory environment - causation - onus of proof -
application of ss 5C and 5D of the Civil Liability Act 2002 (WA)
and ss 51 and 52 of the Wrongs Act 1958 (Vic)
LIMITATION OF ACTIONS - whether primary judge erred in finding that
first and third respondents' claims in negligence were not
statute barred - onus of proof - application of Limitation Act 1935
(WA) and ss 39(3) and (4) of Limitation Act 2005 (WA)
OTHER RELIEF - whether primary judge erred in granting injunction
enjoining appellants from supplying, distributing, marketing or
promoting devices in Australia without warning or advice
Ausipile Pty Ltd v Bothar Boring and
Tunnelling (Australia) Pty Ltd [2021]
QSC 39
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS -
REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY
OF PROGRESS PAYMENTS - PAYMENT CLAIMS - where the respondent
engaged the applicant under a subcontract agreement to construct
and design a secant pile launch shaft - where the applicant applied
for judgment pursuant to s 78(2)(a) of the Building Industry
(Security of Payment) Act 2017 (Qld) to recover amounts owing under
a payment claim - where the parties accept that the applicant is
entitled to judgment unless the respondent can establish a
defence
CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE
REPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR
REPRESENTATION - SILENCE AND NON-DISCLOSURE - where the
applicant's Operations Manager and the respondent's Project
Manager discussed defects in the secant piles - where there was a
misunderstanding about whether the parties had agreed that the
respondent would withhold further payment claims - where the
respondent sent the applicant a letter saying that it would
withhold further payment claims "as discussed" - where
the applicant's Operations Manager discussed the letter with
its Commercial Manager - where the respondent had never previously
provided payment schedules - where the applicant was silent in the
face of the letter - whether the applicant's silence was
misleading or deceptive or likely to mislead or deceive
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS -
REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY
OF PROGRESS PAYMENTS - OTHER MATTERS - where the respondent submits
there was a variation in the payment due dates under the
subcontract - where the respondent submits that, because of this
variation, the applicant did not issue a warning notice within the
timeframes stipulated by s 99 of the Building Industry (Security of
Payment) Act 2017 (Qld) - where the subcontract, new supplier form,
tax invoices and payment claims contained different payment due
dates - where the respondent did not consistently make payments in
accordance with any of these due dates - whether the payment terms
under the subcontract were varied
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS -
REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY
OF PROGRESS PAYMENTS - PAYMENT CLAIMS - where the respondent hired
the applicant's crawler crane in order to complete works under
the head contract - where the applicant's works under the
subcontract had been completed - where the payment claim included a
"variation" amount for the crawler crane hire - whether
the payment claim contained claims in relation to two contracts -
whether the payment claim was void
Building Industry Fairness (Security of Payment) Act 2017 Qld s 68,
s 70, s 73, s 75, s 76, s 77, s 78, s 99, s 100
Competition and Consumer Act 2010 Cth Schedule 2, s 18, s 238
Queensland Building and Construction Commission Act 1991 Qld s
67U
Solar Panel Xpress Pty Ltd v Wallandale
Pty Ltd & Ors [2021] QDC
31
GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF
CONTRACTS - where plaintiff contracted to purchase a business
conducted by the first defendant - whether on the proper
construction of the sale contract, the business sold included PV
sales business component of the existing business - where the
contract was intended to be entirely in writing - whether extrinsic
facts may be considered to assist in construction- whether and to
what extent post-contractual events assist in construction
CONTRACT - MISLEADING OR DECEPTIVE CONDUCT - where profit and loss
statements were provided to the plaintiff in respect of the
business offered for sale by the first defendant - where the profit
and loss statements were prepared by the second defendant
accountants - where the profit and loss statements included revenue
and costs arising from both a 12V and RV sales business and a PV
sales business - whether provision of the profit and loss
statements and certain alleged oral statements related to them were
misleading or deceptive - whether the second defendant accountants
were liable for any misleading conduct alleged by the plaintiff
where the statements were prepared in accordance with the
accountant defendants' retainer. Competition and Consumer Act
2010 Cth Schedule 2 - Australian Consumer Law, s 18
Euromark Limited v Smash Enterprise Pty
Ltd & Ors [2021] VSC
97
CONTRACT - exclusive distribution agreement for UK region
-construction of terms - express good faith obligation - express
term that if customer in Region advises unwilling to deal with
distributor, supplier in consultation with distributor reserves
right to distribute products in Region - express terms on proper
construction include obligation not to procure customer to be
unwilling or to take steps to distribute products in Region without
consultation with distributor - alternatively, similar term
encompassed by good faith obligation - no implied term to that
effect necessary.
CONTRACT - wrongful termination of distribution agreement for UK
Region by supplier - breach by supplier of express terms including
good faith obligation - wrongful termination then withdrawn by
supplier with express statement of intention to be bound by
agreement - whether express terms breached were essential entitling
distributor to terminate - whether further breaches of express
terms after wrongful termination withdrawn entitled distributor to
terminate - right to terminate established.
CONTRACT - whether distribution agreement affirmed notwithstanding
right to terminate - whether distributor had full knowledge of
relevant breaches at time - whether distributor estopped from
contending right to terminate - whether distributor's right to
terminate agreement waived - no affirmation, waiver or estoppel
established.
CONTRACT - termination of distribution agreement by distributor -
whether distributor reading willing and able to perform at relevant
time - whether breach of express term that distributor would not
sell products 'so similar ... that they could be confused'
with supplier products in period before and at termination -
whether breach of express term to promote product in Region in
period before and at termination - proper construction of express
terms - whether breaches of supplier meant distributor excused from
performance of these terms - distributor excused from performance
while supplier asserted agreement terminated and refused to supply
products - distributor not ready willing and able to perform after
purported termination withdrawn as it did not promote supplier
products after that time and before distributor terminated
agreement - whether affects validity of termination or right to
claim loss of bargain damages - termination invalid - no loss of
bargain damages.
MISLEADING CONDUCT - cCompetition and Consumer Law Act 2010 (Cth)
sch 2 ('Australian Consumer Law') (s 18) - distribution
agreement - whether withdrawal of termination by supplier with
express statement of intention to be bound by it misleading -
whether distributor relied on misleading conduct in deciding not to
terminate the agreement earlier - no reliance established.
UNCONSCIONBLE CONDUCT - Competition and Consumer Law Act 2010 (Cth)
sch 2 ('Australian Consumer Law') (s 21) - conduct
'unconscionable in all the circumstances' - exclusive
distribution agreement for UK region - supplier took steps to
distribute products directly in Region by contacting distributors
customers directly - supplier encouraged or procured
distributor's customers to order directly from supplier -
conduct also breach of distribution agreement including good faith
obligation - whether s 21 satisfied - Whether director and employee
of supplier engaged in or involved in unconscionable conduct -
damages.
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.