In the media
Corporate watchdog takes SmileDirectClub to court,
alleging thousands misled by teeth straightening insurance
claims
A company is accused of wrongly telling Aussies they could
claim part of expensive teeth straightening treatment from their
health insurer (13 August 2021). More...
Phoenix Institute acted unconscionably and misled
students
The Federal Court has found that former training college
Phoenix Institute of Australia Pty Ltd and its marketing arm,
Community Training Initiatives Pty Ltd, made false or misleading
representations and implemented systems of unconscionable conduct
in relation to online diploma courses (13 August 2021). More...
Full Federal Court finds Employsure Google Ads
misleading
The Full Federal Court has unanimously upheld an appeal by
the ACCC in relation to Google Ads published by workplace relations
advisor Employsure Pty Ltd. The Full Court found that Employsure
had breached the Australian Consumer Law by making misleading
representations that it was, or was affiliated with, a government
agency, overturning the judgment of Justice Griffiths that
dismissed this claim at first instance (13 August 2021). More...
Contrasting views as ACCC, FSANZ weigh into
'definitions of meat' inquiry
RMAC chair John McKillop has expressed disappointment with
the ACCC submission, stating that fair trading laws and food laws
in Australia and New Zealand require that labels do not misinform
consumers through false, misleading or deceptive representations
(03 August 2021). More...
Money remitters improve price transparency after ACCC
inquiry
The majority of money remitters reviewed by the ACCC are
now giving consumers the tools they need to easily compare the
total price of international money transfers, following an earlier
assessment (2020) which found numerous remitters lagging best
practice. The latest review, found that 12 out of the 15 prominent
remitters reviewed were either adhering to best practice price
disclosure (10 August 2021). More...
'They keep treating them badly': Watchdog
accuses Telstra, Optus and TPG of misleading consumers over NBN
speeds
Australian Competition and Consumer Commission is
taking Telstra, Optus and TPG to court, alleging they
misled hundreds of thousands of consumers over NBN speeds (09
August 2021). More...
Insurers welcome landlord claim recovery method
feedback
Last week, consumer group Choice and legal centre
WEstjustice accused insurers of unfairly pursuing renters for
accidental property damage costs after their landlords make claims.
The advocacy groups are demanding the corporate regulator
investigate industry practice across landlord insurance and assess
if insurers have misled people (09 August 2021). More...
NIOA wins case against Thales over 'misleading and
deceptive behaviours'
After court action between Madritsch KG v Thales
Australia (NIOA acting with the Austrian gunmaker), the
Queensland Supreme Court has found in favour of the Madritsch/NIOA
team, by leading them to believe that Thales had a continuing
interest and even an intention to enter into a sub-licence
agreement with NIOA for the Madritsch Solution (05 August 2021).
More...
ACCC launches legal action against Mercedes-Benz over
Takata airbag recall
The ACCC has launched legal action against
Mercedes-Benz over its handling of the Takata airbag recall.
The consumer watchdog alleges that Mercedes-Benz exposed consumers
to the risks of serious injury or death because it used language
which minimised these risks, and gave the impression that the
recall was precautionary (04 August 2021). More...
In-N-Out Burger suing for trademark infringement over
food delivery 'ghost kitchens'
US burger giant In-N-Out has accused an Australian
Business of engaging in misleading and deceptive conduct in the
Federal Court, (04 August 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
Gold Titan Pty Ltd v
Lopez [2021] FCA
918
CONTRACTS - whether employee breached confidentiality
clause contained in employment contract - whether list containing
compilation of client data "confidential" - whether the
presence of details of some persons and organisations related to
the business who are not clients prevents list from being a
"client list"
EQUITY - whether employee breached equitable obligation of
confidence - whether list containing compilation of client data has
necessary degree of confidence
CONSUMER LAW - whether representations contained on website
were misleading or deceptive - whether conduct complained
of was in "trade or commerce" - whether representations
contained in an email touting for business misleading or
deceptive - whether mere puffery - whether representations have a
tendency to lead members of class of prospective purchasers into
error
DEFAMATION - whether company has standing to bring defamation
proceedings - whether defamatory meanings or imputations were
conveyed - whether imputations carry a defamatory meaning - whether
imputations published
CONTRACTS - where invoice for products requested - where products
received and sold - where invoice not paid - whether implied term
in contract - whether supplier engaged in "disentitling
conduct" limiting the purchaser's ability to sell the
product - whether compensation for alleged additional work incurred
by purchaser outside scope of any agreement between the parties
reduces supplier's entitlements under the invoice
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer
Law) ss 2, 18, 236; Defamation Act 2005 (NSW) ss 9, 25,
26; Sale of Goods Act 1923 (NSW)
Lighthouse Corporation Limited & Anor v
Republica Democratica de Timor Leste & Anor (No
3) [2021] VSC 478
APPLICATION for summary dismissal pursuant to r 23.01 of
the Supreme Court (General Civil Procedure) Rules 2015 (the
Rules) and ss 62 and 63 of the Civil Procedure Act 2010 in
respect of counterclaim seeking declaratory relief only against
individual in circumstances where relief is also sought by the
counterparty for orders avoiding a contract and associated
declaratory relief - whether counterclaim against individual for
declaratory relief produces any foreseeable consequences or has
utility - application for strike out parts of counterclaim pursuant
to rule 23.02 of the Rules alleging post-contravention conduct said
to be in contravention of s 51AC(1) of the Trade Practices Act 1974
(the TPA) where such contravening conduct is not
relied upon as founding a claim for relief under s 87(1A) of the
TPA but only for the purposes of s 87(1D) of that act - application
for strike out of parts of counterclaim alleging post-contravention
conduct where the-post contravention conduct is said to be
time-barred by operation of s 87(1CA) of the TPA
In the counterclaim, Timor Leste, among other things: (a)
Incorporates by reference the pre-contractual misrepresentations
and alleges that they
constitute misleading and deceptive conduct
('the pre-contractual misleading and deceptive
conduct ') contrary to s 52 of the Trade Practices Act 1974
(Cth)
Conclusion: In light of the above matters, the counterclaim against
Mr Jacobs will be dismissed; the paragraphs of the counterclaim
relating to the post-contractual conduct will be struck out
Corestaff NT Pty Ltd v Insurance
Australia Ltd [2021] QSC
195
1. The parties are directed to confer and provide to
Chambers draft orders and brief written submissions as to the
appropriate relief in light of these reasons and costs within 14
days.
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND
INTERPRETATION OF CONTRACTS - EXEMPTION CLAUSES - where proceedings
have been commenced in the Federal Court against the applicant for
damages for breach of contract and/or an order for compensation
pursuant to section 236 of the Australian Consumer Law 2010
(Cth) (ACL) for misleading and deceptive conduct -
where the applicant seeks declarations in respect of the proper
construction of a policy of insurance which was issued by the
respondent and held by the applicant - where the parties are in
dispute about the proper construction of clauses 7.9(a) and (c) of
the Policy - where the applicant contends that the alleged
contraventions of ss 18 and/or 31 of the ACL in the Federal Court
proceedings are covered by a policy of insurance issued by the
respondent and held by the applicant - where the respondent
contends that the ACL claims are excluded under clause 7.9(a)
and/or clause 7.9(c) of the Policy - whether coverage for the ACL
claims is excluded by clause 7.9(a) and/or clause 7.9(c) of the
Policy Australian Consumer Law 2010 (Cth), s 18, s 31, s
236
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.
