In the media
Privatise for efficiency, or not at all
Speaking at the 2021 ACCC/AER Regulatory Conference, Mr
Sims discussed the need to either avoid monopolies, or if not then
regulate them, to prevent costs to the economy arising from
unfettered use of their market power. Mr Sims put forward two
possible solutions to avoid privatisations creating future
unfettered private monopolies (30 July 2021). More...
ACCC appeals in NSW Ports competition case
The ACCC has lodged an appeal against the Federal
Court's decision to dismiss the ACCC's proceedings against
NSW Ports Operations Hold Co Pty Ltd and its subsidiaries Port
Botany Operations Pty Ltd and Port Kembla Operations Pty Ltd
(together, NSW Ports). The Court found that compensation provisions
in the Port Commitment Deeds did not have an anti-competitive
purpose or effect (27 July 2021). More...
Restrictions on marketing of infant formula
reauthorised
Studies submitted to the ACCC and anecdotal evidence from
multiple submissions, including from healthcare professionals,
indicated consumers could be confused between infant formula and
toddler milk products and advertising. The issues raised by this
application go beyond the scope of competition law, and raise
significant health policy issues (27 July 2021). More...
Simply Energy hit with $2.5m fine after sales
contractors allegedly impersonated customers in scam
An Australian energy company has been fined $2.5m after
two external door-to-door sales agents allegedly used false names
and made-up accents to switch customers to new contracts without
their consent. The commission says the agents allegedly used a
combination of real and falsified details to contact Simply Energy
pretending to be customers authorising the transfers (26 July
2021). More...
ACCC takes investigation to market
The ACCC is to examine concerns relating to the
competition and consumer activities of organisations such as eBay
Australia, Amazon Australia, Kogan and Catch.com.au as part of its
inquiry into digital platform services in Australia. The Commission
would examine the marketplaces and their relationships with
third-party sellers and consumers, as well as how the marketplaces
affected competition in Australian markets (26 July 2021). More...
BTFM, Asgard Capital fined $3m
The Federal Court will force BT Funds Management and
Asgard Capital Management to pay $1.5 million each for charging
fees for no service and making misleading statements. Between
September 2014 and August 2017, the court found that the companies
harmed 404 customers, leading to about 487 breaches of the
Corporations Act (26 July 2021). More...
Lactalis Australia in court for alleged Dairy Code
breaches
This is the first time the ACCC has commenced proceedings
for alleged breaches of the Code. The ACCC alleges Lactalis
breached a number of provisions of the Code, and, in doing so,
weakened the bargaining power of farmers who supply milk to them
(26 July 2021). More...
Lorna Jane pays $5 million over false 'anti-virus
activewear' claims
The Federal Court has ordered penalties for making false
and misleading representations to consumers, and engaging in
conduct liable to mislead the public, in connection with the
promotion and supply of its "LJ Shield Activewear". The
misleading representations were made on in-store signage, on its
website, on Instagram, in emails to consumers and in media releases
(23 July 2021). More...
Greenwashing scrutiny needed: Evergreen
ASIC's research project into the extent of
greenwashing in the investment management industry should be
commended, according to Evergreen Consultants. Greenwashing in
investments involves misrepresenting or overstating an investment
fund's commitment to ethical or socially responsible investing
(23 July 2021). More...
Competition, consumer issues in general online
marketplaces to be examined
The ACCC is keen to receive submissions from consumers,
platforms and third-party sellers, to inform its inquiry, and has
released an issues paper. The ACCC will examine the
marketplaces and their relationships with third-party sellers and
consumers, as well as how these marketplaces affect competition in
Australian markets (22 July 2021). More...
New Hope mining company referred to Asic, accused of
misleading investors over future of coal
Investor action group Market Forces says coal company is
'building a financial house of cards' by telling
shareholders coal will remain 'significant' in energy mix
(21 July 2021). More...
Viterra's Port Lincoln and Thevenard grain ports not
exempt from Bulk Wheat Code
After looking at the South Australian grain industry and
latest shipping data in detail, the ACCC consider that Viterra
doesn't currently face sufficient competition at its Port
Lincoln and Thevenard facilities to justify removing certain
protections for independent exporters (20 July 2021). More...
Practice and Regulation
ACCC Issues Paper: Digital Platform Services Inquiry -
March 2022 Report on general online retail marketplaces
The ACCC will consider pricing practices; the use of data;
the terms and conditions imposed on third-party sellers; and the
impacts on competition when the marketplace itself operated as a
seller on the platform. Submissions to the inquiry open until 19
August. The ACCC's Issues Paper, including information on how
the have a say, can be accessed here.
ACCC Consultation: Facebook advertisements
Closes 1 September 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.
Cases
Watt v Shepherd (No
2) [2021] FCA
826
COMPETITION AND CONSUMER LAW - misleading and deceptive
conduct - default judgment under r 5.23 of Federal Court Rules 2011
- unconscionable conduct - accessorial liability - inducement and
reliance - unfair tactics - where Competition and Consumer
(Industry Codes - Franchising) Regulation 2014 applied - where
respondents made multiple misleading and deceptive representations
to principal applicant - where respondents intended representations
would induce principal applicant to invest and participate in
franchising structure and influence other applicants to become
franchisees - where representations were as to finance, future
matters and profitability of franchise - where respondents lacked
reasonable grounds for representations as to future matters - where
respondents knew that principal applicant was in a position to
influence other proprietors - where respondents knew fees payable
by franchisees were not affordable or financially sustainable for
franchisees - where respondents failed to make good earlier
representations - where respondents failed to prepare or provide
franchisees with disclosure documents, or receive from franchisees
statement as to independent advice under cl 10 of Code - whether
failure to provide documents required by the Code exposed
franchisees to situation of vulnerability and disadvantage which
was unconscionable conduct - representations made in trade or
commerce within meaning of Competition and Consumer Act 2010 (Cth)
and Australian Consumer Law - held: Representations were misleading
and deceptive (ss 18, 21 of the ACL); representations constituted
unfair tactics and unconscionable conduct (ss 22(1)(g) and 22(2)(g)
of the ACL); first, second and third respondents accessorially
liable; franchise agreements voided; default judgment for damages
to be assessed (ss 82, 87 of the CC Act and ss 236, 237 and 243 of
the ACL).
Johnson v
Mackinnon [2021] NSWCA
152
CONSUMER LAW - misleading or deceptive conduct -
representations - explicit false representations made in proposal
document given to prospective investors in fraudulent betting
syndicate scheme masterminded by notorious conman - appellant a
member of partnership promoting scheme - whether appellant had
knowledge of false representations - whether appellant jointly and
severally liable for misrepresentations made in ordinary course of
business of partnership - liability established APPEALS - from
findings of fact and credibility - function of appellate court -
circumstantial case - briginshaw standard - inferences from primary
facts - whether open to be comfortably satisfied various factual
findings, including inference that appellant knew of false proposal
representations PARTNERSHIPS AND JOINT VENTURES - relationship of
partners to persons dealing with them - liabilities of partner -
partnership intended to be limited - unlimited because limited
partnership agreement never registered - joint and several
liability for misrepresentations made by other partner in ordinary
course of business of partnership CONSUMER LAW - misleading or
deceptive conduct - silence or non-disclosure - whether appellant
represented that conman not involved in scheme - whether appellant
had knowledge of various prerequisite facts such as notoriety,
involvement, and alias of conman, and of need to conceal such
information - appellant unable to demonstrate any of these findings
as glaringly improbable - appellant ought to have known of
reasonable expectation that conman's involvement would be
disclosed - appellant did not disclose and deliberately concealed
conman's involvement CIVIL PROCEDURE - pleadings - amendment -
late application for amendment on second day of trial - amendments
added alleged liability of appellant for representation by silence
and clarified alleged liability of appellant for explicit proposal
representations - whether appellant deprived of opportunity to make
"no case" submission - whether primary judge failed to
consider dictates of justice - not necessary to recite
considerations seriatim - appellant not deprived of fair and
reasonable opportunity to meet case - pleadings sufficiently clear
and specific, and not unfairly open-ended CIVIL PROCEDURE -
pleadings - construction of pleadings - subparagraphs of pleadings
not in precise correspondence with each other - whether prejudicial
construction by primary judge in finding that pleadings
nevertheless sufficiently clear CONSUMER LAW - misleading or
deceptive conduct - causation or reliance - whether
respondent's decision to invest caused by proposal
representations - whether prospective investor would have been
deterred by knowledge of involvement of notorious conman - gullible
investors not disentitled to protection CONSUMER LAW - misleading
or deceptive conduct - remedies - quantification of damages -
whether primary judge failed to account for group members'
prior recoveries and respondent's trading profits received from
scheme - award of damages below only for respondent's unpaid
loan to scheme - prior recoveries and trading profits irrelevant
CIVIL PROCEDURE - representative proceedings - remedies - award of
damages to individual group member CIVIL PROCEDURE - Court of
Appeal - notice of contention - reliance on claim in deceit in
addition to misleading and deceptive conduct - deceit considered
briefly in judgment below - contention material and advances
respondent's case in circumstances where appellant claims
apportionment for misleading and deceptive conduct but cannot do
the same for claim in deceit - notice of contention upheld and
decisive of appeal - unnecessary to consider further aspect of
notice, namely conspiracy TORTS - miscellaneous torts - deceit -
relationship with misleading or deceptive conduct - apportionment
defence available for misleading and deceptive conduct but not for
deceit TORTS - joint and several liability - apportionment -
primary judge disallowed late attempt to raise apportionment
defence - disallowance denied a real prospect of significant
reduction in liability - strongly arguable error in disallowance -
unnecessary to consider further as respondent nevertheless able to
rely on non-apportionable claim in deceit.
Madritsch KG & Anor v Thales
Australia Ltd [2021] QSC
170
INTELLECTUAL PROPERTY - CONFIDENTIAL INFORMATION -
INFORMATION PROTECTED - - USE OF INFORMATION - - OBLIGATION OF
CONFIDENTIALITY - TRADE AND COMMERCE - OTHER REGULATION OF TRADE OR
COMMERCE - RESTRAINTS OF TRADE - VALIDITY AND REASONABLENESS -
PARTICULAR CASES - COMMERCIAL TRANSACTIONS - GENERALLY- where the
defendant contends that the clauses of the NDA prohibiting the use
of the relevant information are unenforceable as unreasonable
restraints of trade - where pursuant to section 4 of the Restraints
of Trade Act 1976 (NSW) a restraint of trade is valid to the extent
to which it is not contrary to public policy - where whether it is
contrary to public policy is determined with regard to the
legitimate interests of the parties and the interests of the public
- whether, in light of the defendant's breach, the relevant
clauses of the NDA were reasonably necessary to protect the
interests of the plaintiffs in the relevant information
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR
DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - MISLEADING OR
DECEPTIVE CONDUCT GENERALLY - MISLEADING OR DECEPTIVE: WHAT
CONSTITUTES -- where the defendant expressed its interest in
producing the Madritsch Solution under licence from the second
plaintiff - where the defendant received a draft sub-licence
agreement and quickly formed the view it intended to reject it -
where the defendant took steps that led the plaintiffs to believe
it was considering the offer with a view to accept it or make a
genuine counter offer - whether the defendant engaged in misleading
or deceptive conduct in contravention of s 18 of the Australian
Consumer Law
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF
CONTRACTUAL RELATIONS - AGREEMENTS CONTEMPLATING EXECUTION OF
FORMAL DOCUMENT - WHETHER CONCLUDED CONTRACT
Competition and Consumer Act 2010 Cth Sch 2 (Australian Consumer
Law) s 18; Restraints of Trade Act 1976 NSW s 4.
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.