In the media
Jump Swim ordered to pay penalties of $23 million and
Ian Campbell ordered to pay compensation
The franchisor Jump Loops Pty Ltd (in liquidation) has
been ordered to pay penalties of $23 million for making false or
misleading representations and wrongly accepting payments from
franchisees, in proceedings brought by the ACCC (20 May 2021).
More...
'Puffed up IPO': Two class action law firms
investigating Nuix
Sydney-based firm Quinn Emanuel and Melbourne's Phi
Finney McDonald are both actively investigating Nuix, with lawyers
preparing to build a case around misleading and deceptive conduct
or breaches of continuous disclosure obligations (19 May 2021).
More...
Australia's timeshare industry accused of trapping
people into long-term contracts
Choice has accused the timeshare holiday industry of
predatory sales tactics and trapping people into unfair long-term
contracts in a wide-ranging complaint lodged with the corporate
regulator. It called on ASIC to prosecute timeshare operators who
break the law and investigate the industry over allegations of
misleading and deceptive conduct by salespeople and breaches of
anti-hawking laws (18 May 2021). More...
Rex offers cheap tickets on Canberra-Melbourne route in
Qantas price battle
Rex Airlines has opened a new, more aggressive front in
its price war with Qantas by adding the Canberra-Melbourne route at
$69 one way. Rex said Qantas has perfected the art of price
gouging, ripping off passengers with sky-high fares on a route with
no competition to keep it honest. He noted that the public service
has an obligation to choose the cheapest fare (18 May 2021).
More...
Pilbara Ports Authority retains strong iron ore
exports
The Australian Bureau of Statistics reported iron ore
accounted for 39 per cent of Australia's March exports at a
record $14 billion. According to Reuters, regulators in Shanghai
and Tangshan have warned local steel companies against price
gouging and false market information following the surge in prices
(17 May 2021). More...
Listed gym giant Viva Leisure's looming legal
stoush
One of the country's biggest gym and health club
chains, Viva Leisure, is facing an uprising from dozens of
franchisees amid claims of unconscionable and unfair conduct (17
May 2021). More...
Funeral insurer engaged in misleading conduct:
AFCA
The Australian Financial Complaints Authority has ruled
against Aboriginal Community Benefit Fund (ACBF)
in two separate disputes lodged against the funeral insurer. In the
two complaints, ACBF was accused of engaging in misleading and
deceptive conduct to sell its funeral policies to vulnerable
consumers, particularly those from the Indigenous community (17 May
2021). More...
OFT turns up the heat on air con non-supplier
A Calamvale electrician has been ordered to pay more than
$11,000 in fines and compensation following an investigation by the
Office of Fair Trading. Samuel James Goodwin, who traded as Turned
On Electrical and Air Conditioning, was found guilty of two
breaches of the ACL by accepting money and failing to supply goods
and services within a reasonable time, and by making false
representations of goods and services he provided (14 May 2021).
More...
ACCC takes action over alleged attempted cartel for
National Gallery of Australia tender
The ACCC has instituted civil proceedings in the
Federal Court against Delta Building Automation Pty
Ltd and its sole director, Timothy Davis, for involvement
in an alleged attempt to rig a bid in connection with a tender
conducted by the National Gallery of Australia in Canberra (13 May
2021). More...
Telstra to pay $50m penalty for unconscionable sales to
Indigenous consumers
The Federal Court ordered that Telstra pay $50 million in
penalties for engaging in unconscionable conduct when it sold
mobile contracts to more than 100 Indigenous consumers across three
states and territories, in proceedings brought by the
ACCC. "The $50 million penalty imposed against Telstra is
the second highest penalty ever imposed under the Australian
Consumer Law (13 May 2021). More...
NIB to continue to notify consumers of health insurance
changes which increase out-of-pocket expenses
The ACCC and NIB Health Funds Limited
(NIB) have agreed to the ACCC's Federal Court
proceedings against NIB being discontinued after NIB committed to
continue to provide advance notice to its members of policy changes
which are likely to result in higher out-of-pocket expenses for
consumers (11 May 2021). More...
Practice and Regulation
ACCC to scrutinise dairy code compliance as 1 June
deadline approaches
The ACCC is urging dairy farmers and processors to
be aware of their rights and obligations under the Dairy Code of
Conduct. The mandatory code requires most dairy processors to
publish standard form milk supply agreements to cover all the
circumstances in which they intend to purchase milk in the coming
financial year on their websites by 1 June
(13 May 2021).
NOTE: The ACCC has published information on its website, including a fact sheet for farmers, to help parties
understand their rights and obligations under the code.
ACCC seeks leave to appear in
Epic v Apple appeal
The ACCC has sought leave to appear as 'amicus
curiae' or as non-party in Epic's appeal to the Full
Federal Court against the Court's decision to stay Epic's
proceedings against Apple.
Epic has alleged Apple engaged in anti-competitive conduct in
relation to the App Store. Apple sought to stay proceedings on the
ground that an agreement between them required disputes to be
determined in California. Justice Perram granted the stay in
April. Epic lodged a notice of Appeal on 14 April. A
hearing is scheduled for 9 June 2021.
ACCC Facebook advertisements
Closes 1 September 2021 Opened 4 May 2021
The ACCC is aware of advertisements on Facebook about
cryptocurrency products featuring the name or image of an
Australian public figure. These advertisements might look like
articles or posts in your Facebook newsfeed. We are concerned that the advertisements may be
false or misleading.
If you see one of these advertisements on Facebook, please take a
screenshot and submit it to the ACCC.
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 18 March 2021 the Senate agreed: That the resolution of
appointment of the Select Committee on Financial Technology and
Regulatory Technology be amended as follows: That the committee
present its final report on or before 30 October 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)
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 Campbell (No 3) [2021] FCA
528
CONSUMER LAW - application for remedies under the Australian
Consumer Law (Schedule 2 to the Competition and Consumer Act 2010
(Cth)) - contraventions of ss 18, 29(1)(g), 36(3) and 36(4) of the
Australian Consumer Law - where the respondents sold franchises to
consumers representing that those franchises would be operational
within 12 months, and received payments from franchisees on that
basis, but in most instances did not supply a franchise within that
period or at all - where the contravening conduct caused
substantial loss to franchisees - where the first respondent is in
liquidation and the third respondent has limited financial
resources - where the parties have jointly filed statements of
agreed facts and admissions - where the applicant and third
respondent have agreed penalties and filed joint submissions in
support of agreed penalties - where the first respondent does not
oppose the orders sought by the applicant - consideration of the
relevant principles to theassessment of pecuniary penalties,
non-party consumer redress orders, declaratory and injunctive
relief
STATUTORY INTERPRETATION - proper construction of s 227 of the
Australian Consumer Law - meaning and effect of the requirement to
give preference to making an order for compensation - whether
orders proposed by the applicant satisfy that requirement
Competition and Consumer Act 2010 (Cth) ss 80, 137H; Competition
and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss
4, 18, 29(1)(g), 36(3), 36(4), 224, 227, 232, 233, 239, 240(1),
240(3).
Australian Competition and Consumer
Commission v Telstra Corporation
Limited [2021] FCA
502
CONSUMER LAW - admitted contraventions of s 21 of Australian
Consumer Law - whether agreed pecuniary penalty appropriate having
regard to all relevant circumstances - consideration of relevant
matters in determining amount of pecuniary penalty - declaratory
relief and penalties awarded in terms sought by parties pursuant to
s 244 of the ACL
Competition and Consumer Act 2010 (Cth), s 21; Evidence Act 1995
(Cth); Federal Court of Australia Act 1976 (Cth).
State of Queensland v
Telecommunications Industry
Ombudsman [2021] FCA
522
STATUTORY INTERPRETATION - Telecommunications Act 1997 (Cth) Sch 3
Pt 1 Div 4 cl 7 - "maintenance activity" - whether
maintenance included the installation of a new fibre optic cable in
a conduit or duct owned by a third party - whether a carrier which
is a "stranger" to original facilities owned by other
carriers can be said to "maintain" those original
facilities - extended statutory definition of
"maintenance".
In respect of "maintenance" the State particularly relied
on the observations of Kunc J in Pipe Networks at [96]. In that
case NBN Co alleged that Pipe Networks engaged
in misleading and deceptive conduct by representing that
Sch 3 to the Telecommunications Act empowered Pipe Networks to
install certain telecommunications equipment.
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.