In the media
Small businesses navigate pandemic, misconduct and
scams
Releasing its Small Business in Focus report, the ACCC
said a business contacting it between January and June this year
was most likely reporting false and misleading conduct,
"asking about their obligations to consumers during the
COVID-19 pandemic or raising concerns about consumer
guarantees" (28 August 2020).
More...
New inquiry to focus on perishable agricultural supply
chains
The ACCC will commence a new three-month inquiry into
bargaining power in supply chains for perishable agricultural
products in Australia (26 August 2020).
More...
iSignthis Ltd (ASX:ISX) $264m damages claim against ASX
for misleading conduct
iSignthis has filed its amended statement of claim against
the ASX Limited in the Federal Court of Australia. The amended
statement of claim now also alleges misleading and deceptive
conduct under section 1041H of the Corporations Act by the ASX, by
publishing a 'Statement of Reasons' that purported to
explain the basis of the suspension of ISX securities since the 2nd
October 2019 (21 August 2020).
More...
ACCC seeks feedback on NBN pricing
Following extensive discussions with the ACCC, NBN Co has
proposed measures including cheaper wholesale pricing for
entry-level products to ensure an affordable product is available
for consumers transitioning to the NBN, more certainty about NBN
Co's pricing and products, and stronger commitments about
service standards, including rebates (20 August 2020).
More...
HealthEngine to pay $2.9 million for misleading reviews
and patient referrals
The Federal Court has ordered that HealthEngine Pty Ltd
(HealthEngine) pay $2.9 million in penalties for engaging in
misleading conduct in relation to the sharing of patient personal
information to private health insurance brokers and publishing
misleading patient reviews and ratings (20 August 2020).
More...
Practice and regulation
ACCC: Inquiry into NBN access pricing - Consultation
paper on NBN Co's WBA4 proposal
On 20 August 2020, the ACCC resumed the Inquiry into NBN
access pricing and the NBN wholesale service standards inquiry and
released a consultation paper on NBN Co's WBA4 proposals. The
Commission said submissions would be accepted until 11 September.
Further information, including a consultation paper from the ACCC
and how to lodge a contribution, can be accessed
here.
ACCC Consultation: draft news media bargaining
code
The ACCC has released its draft mandatory media bargaining
code for consultation. The code seeks to address the fundamental
bargaining power imbalance between Australian news media
businesses and major digital platforms. Consultation on the draft
code will now take place until 28 August 2020.
More...
Consumer Safeguards Review Part C: Choice and fairness -
consultation paper
Department of Infrastructure, Transport, Regional
Development and Communications (Australia) Government of Australia:
27 July 2020
The Consumer Safeguards Review is examining what consumer
safeguards are required for a changing communications environment,
with a focus on the post-2020 environment. This consultation paper
seeks the public's views on proposals for reform regarding
choice and fairness in the retail relationship between
customers. More...
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."
Consultation Reminder: Country of origin food
labelling
The evaluation of country origin labelling for food will
consider if the labels are helping consumers make more informed
choices, as well as clarifying the origin claims that businesses
can make, while avoiding excessive costs for businesses which will
be passed onto shoppers. A discussion paper and an
opportunity to provide views is available
here until 11 September 2020. More information on country
of origin labelling is available at
here.
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) (CCA) 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.
More...
Cases
Australian Competition and Consumer Commission v
HealthEngine Pty Ltd [2020] FCA
1203
CONSUMER LAW – admitted contraventions of ss
18, 29(1)(b), 29(1)(e) and 34 of the Australian Consumer Law
– whether agreed declarations, orders and pecuniary penalty
appropriate – application of the course of conduct principle
– where agreed form of declarations, orders and pecuniary
penalty approved
Competition and Consumer Act 2010 (Cth) Schedule 2
(Australian Consumer Law ) ss 18, 29(1)(b), 29(1)(e), 34,
224(1)(a)(ii), 246(2)(b), 246(2)(c); Evidence Act 1995 (Cth) s 191;
Federal Court of Australia Act 1976 (Cth) ss 37AF,
37AG(1)(a)
Liggins & Anor v Park Trent Properties Group Pty Ltd
& Anor [2020] NSWSC
1113
CONTRACT – whether the plaintiffs have suffered any
loss or damage by reason of any breach of contract by the first
defendant. SPECIFIC PERFORMANCE – STATUTE OF LIMITATIONS
– MISLEADING AND DECEPTIVE CONDUCT – plaintiffs allege
that by signing the letter and causing it to be issued to the
plaintiffs the second defendant engaged in misleading and deceptive
conduct inducing the plaintiffs to acquire the two properties
– whether the second defendant engaged in misleading or
deceptive conduct – whether the plaintiffs were induced by
the second defendant's misleading or deceptive conduct to
acquire the two properties – second defendant first joined
into the proceedings in 2019 – whether the plaintiffs'
claim for misleading and deceptive conduct is statute barred
– if misleading and deceptive conduct were established
whether the plaintiffs have suffered loss or damage.
Competition and Consumer Act 2010 (Cth), Schedule 2, ss 18, 21, 22,
82(2)
This representation was said to be misleading and deceptive under
the Australian Consumer Law, s 18 on much the same grounds that
unconscionable conduct was pleaded against ParkTrent: that
ParkTrent knew the buyback letter could not be enforced; that it
had no intention of honouring its terms; and that it did not intend
to buy back the properties.
Adani
Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd &
Ors [2020] QSC
260
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – where the
applicant is the owner, and the respondents are users, of a coal
terminal – where user agreements exist between the applicant
and the respondents –– where the respondents argue that
as the result of a series of agreements the applicant in effect
received payment of a previous user's future obligations while
requiring the remaining users to pay the equivalent of those
obligations as charges under the user agreements – where the
applicant was in a monopolistic position – where market
conditions put the respondents in a vulnerable position –
where applicant was acting in the interests of related corporation
as well as its own interests – where there were alternative
courses of action available to the applicant – whether
applicant went beyond its legitimate commercial interests –
pricing of monopoly asset – situational disadvantage and
vulnerability – where there was no breach of contract –
dishonest behaviour and want of good faith – whether the
applicant's conduct was in all the circumstances unconscionable
in contravention of s 21(1) of the Australian Consumer Law
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS –
1. Judgment is given for the first respondent against the
applicant in an amount of $37.9 million.
2.Judgment is given for the
second respondent against the applicant in an
amount of $25.3 million.
3.Judgment is given for the third respondent against the applicant
in an amount of $31.7 million.
4.Judgment is given for the fourth respondent against the applicant
in an amount of $11.9 million
Competition and Consumer Act 2010 Cth; Infrastructure Investment
(Asset Restructuring and Disposal) Act 2009 Qld; Queensland
Competition Authority Act 1997 Qld
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.