In the media
Proposal for more transparency on music performing
rights licensing
The ACCC is calling for feedback on a proposal in the
licensing arrangements, to remove any risk that they may breach
competition provisions of the Competition and Consumer Act. APRA
already has a near-monopoly, and the exclusivity provisions it has
with artists makes its position even stronger. This raises a risk
of higher prices for businesses that play music, and other
inefficiencies or restrictions for APRA members (05 June 209).
More...
Class action lawsuits continue to be launched at
industry
A major super fund is the latest in the financial industry
to be slapped with a class action lawsuit as a major bank looks set
to settle one of theirs. The class action is the latest in a series
of class actions with Maurice Blackburn having recently been
awarded the case against AMP for alleged misleading and deceptive
conduct, and a cartel class action being launched against five
global investment banks including Citibank and JP Morgan (05 June
2019).
More...
ASIC spotlight on Sterling First firms over 'serious
allegations' of misconduct before collapse
A WA property investment and management group that went
under last month was being investigated by the corporate regulator
and facing "serious allegations" of misconduct. The
allegations include misleading or deceptive conduct, unconscionable
conduct and breaches of conduct (05 June 2019).
More...
ASIC permanently bans adviser over inappropriate SMSF
advice
ASIC has permanently banned Perth-based adviser Phillip
Emidio Bruni from providing financial services after surveillance
it undertook found that Mr Bruni had been dishonest and engaged in
misleading or deceptive conduct and failed to act in the best
interests of clients when advising them on SMSFs and property (04
June 2019).
More...
Insider trading volumes on the increase, warns
ASIC
ASIC commissioner Cathie Armour used a speech at the
Australian Regulatory Summit to sound the alarm over some unusual
market activity detected by ASIC between 2016-2019. The
Commissioner issued a warning to cryptocurrency marketers after
concerning examples seen of offers for these assets that appear to
involve misleading or deceptive conduct, or that are promoted in a
way that does not comply with the regulatory framework (04 June
2019).
More...
More transparency needed in wine grape sector
Harmful market practices are restricting competition in
some Australian wine grape growing regions and limiting the
potential for growth of Australia's wine industry, according to
an interim report released by the ACCC (03 June 2019).
More...
Jetstar to pay $1.95 million for false or misleading
claims on refunds
The Court found that between April 2017 and March 2018,
Jetstar made false or misleading statements on its website that
some fares were not refundable, and that consumers could only get a
refund if they purchased a more expensive fare (30 May 2019).
More...
Garuda ordered to pay $19 million for price fixing
The Federal Court has ordered Garuda to pay penalties of
$19 million for price fixing in relation to fees and surcharges for
air freight services. The penalty ruling comes almost 10 years
after the matter was first filed in the Federal Court (30 May
2019).
More...
Allegations Sony breached consumer law for PlayStation
games
The ACCC has instituted proceedings in the Federal Court
against Sony Interactive Entertainment Network Europe Limited (Sony
Europe) for making false or misleading representations to
Australian consumers on its website and in dealings with Australian
customers of its PlayStation online store (29 May 2019).
More...
Hunting 'the Mafia': Big investment banks face
Australian cartel claim
Five of the biggest investment banks in the world,
including UBS, Barclays and Citibank, have been accused in an
Australian class action lawsuit of operating a foreign exchange
cartel using secret chat rooms titled "the Cartel",
"the Bandits Club" and "the Mafia" (27 May
2019).
More...
Practice and Regulation
ACCC Consultation: Wine grape market study - June
interim report.
The ACCC is seeking feedback on the interim report by 28
June 2019 and expects to release a final report in September 2019
(03 June 2019).
More...
Cases
Australian Securities and Investments Commission v Vocation
Limited (In Liquidation) [2019] FCA
807
CORPORATIONS – continuous disclosure obligations
– ASX Listing Rule 3.1 – s 674(2) of the
Corporations Act 2001 (Cth) (Act)
CORPORATIONS – whether ASX announcement made by company
relating to funding contracts and withholding of payments was
misleading or deceptive or likely to mislead or deceive –
whether company contravened s 1041H by making such
announcement
CORPORATIONS – whether completed due diligence questionnaire
(DDQ) provided by company to proposed underwriter
of proposed equity capital raising was misleading or deceptive or
likely to mislead or deceive – whether company contravened s
1041H of the Act by providing DDQ to proposed underwriter
Acts Interpretation Act 1901 (Cth) s 2(2), 36
Australian Consumer Law 2010 (Cth) s 18
Corporate Law Economic Reform Program (Audit Reform and
Corporate Disclosure) Act 2004 (Cth)
Corporations Act 2001 (Cth) ss 180, 674, 676, 677, 708,
708A, 1041H, 1317S, 1318
Trade Practices Act 1974 (Cth) ss 52, 75
Lucas v Zomay Holdings Pty Ltd [2019]
FCA 830
CONTRACTS – applicant seeks specific performance of
contract – "fourth category" of Masters v
Cameron [1954] HCA 72; (1954) 91 CLR 353 – allegation of
repudiation
CONSUMER LAW – misleading and deceptive conduct
Competition and Consumer Act 2010 (Cth), sch 2
('Australian Consumer Law'), s 18
Corporations Act 2001 (Cth), s 440D
Australian Competition and Consumer Commission v Jetstar
Airways Pty Ltd [2019] FCA
797
CONSUMER LAW – admitted contraventions of ss 18 and
29(1)(m), Australian Consumer Law (ACL) –
misleading or deceptive representations made on respondent
airline's website – where representations in booking flow
that fares were non-refundable when there may be an entitlement to
a refund under statutory consumer guarantees – where
representation in conditions of carriage that flight services were
not subject to statutory guarantees – where representations
in conditions liable to mislead consumers as to remedies available
for non-compliance with consumer guarantees – consideration
of principles for determining whether agreed penalty and other
agreed orders for non-compliance with the ACL appropriate –
where public importance in sending a strong message of deterrence
to highlight importance of ensuring accuracy in making
representations on consumer rights – where no intention to
mislead – where high degree of co-operation by the
respondents with the ACCC – where appropriate to impose
agreed penalties and grant declaratory relief in terms agreed
Australian Consumer Law ss 18, 29(1)(m); Competition and
Consumer Act 2010 (Cth); Federal Court of Australia Act
1976 (Cth)
Australian Competition and Consumer Commission v PT Garuda
Indonesia Ltd (Remedies) [2019] FCA
786
COMPETITION – collusive arrangement –
exclusive dealing – respondent found to have contravened s 45
of the Trade Practices Act 1974 (Cth) – enforcement
and remedies – application for declarations, injunctions and
pecuniary penalties – consideration of relevant
principles
PUBLIC INTERNATIONAL LAW – act of state doctrine –
distinction between foreign state immunity and act of state
doctrine – whether commercial acts of respondent airline had
sovereign aspect to them
PUBLIC INTERNATIONAL LAW – where respondent submitted
injunctions and pecuniary penalties would be contrary to customary
international law – where respondent argued customary
international law relevant to Court's discretion and power to
grant remedies – where respondent argued relevance of
principles of 'accommodation, mutuality and
proportionality'
STATUTORY INTERPRETATION – factors relevant to imposition of
pecuniary penalty – loss or damage flowing from contravention
of competition law – consideration of deeming provision in s
45A of the Trade Practices Act 1974 (Cth) – whether
s 45A can inform assessment of loss or damage under s 76 or limited
to establishing breach of s 45 – consideration of Federal
Commissioner of Taxation v Comber [1986] FCA 92; 10 FCR 88 and
Re Levy; Ex parte Walton (1881) 17 Ch D 746
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