In the media
Brisbane drivers at mercy of price gouging
servos
RACQ has condemned Brisbane service stations for ripping off
motorists, after it was revealed drivers were charged $400 million
more for fuel over the past eight years than those in other major
capital cities (09 October 2017).
More...
Full Federal Court orders $20.6 million penalties
against Cement Australia companies
The Full Court of the Federal Court has upheld an ACCC appeal, and
dismissed a cross appeal by Cement Australia, against the penalties
imposed on Cement Australia Pty Ltd and its related companies for
making and giving effect to anti-competitive agreements (05 October
2017).
More...
ACCC delays final report into dairy industry until 30
April
The date for final reporting of the ACCC's inquiry into
competitiveness of prices, trading practices and supply chain in
the Australian dairy industry has been pushed back by five months.
The interim report is now expected to be released in November and
final report is due 30 April 2018 (05 October 2017).
More...
(ACCC Dairy Inquiry) More...
Consumers 'gouged' by gas companies, ACCC
launches price crackdown
The competition watchdog will attempt to avert an 'energy
crisis' by cracking down on the prices that gas companies are
charging customers (04 October 2017).
More...
National Warranty Company agrees to change extended
warranties
Davantage Group Pty Ltd trading as National Warranty Company
(NWC) has agreed to make changes to its
'Extension to Manufacturer's Warranty'. In particular,
the ACCC was concerned that the product name, 'Extension to
Manufacturer's Warranty', had the potential to mislead
consumers into thinking they received cover on the same terms as
the vehicle manufacturer's warranty (28 September 2017).
More...
Belle Gibson fined $410,000 for false charity
promises
Federal court orders disgraced wellness blogger to pay penalty
after she sold a cookbook and app after claiming to have cured
cancer naturally. The disgraced wellness blogger Belle Gibson has
been ordered by the federal court in Melbourne to repay $410,000 to
the state of Victoria (28 September 2017).
More...
Gibson fined $410,000 for 'misleading and deceptive
conduct'
Gibson has been fined for five separate contraventions of the
Australian Consumer Law Act. The $410,000 fine includes $90,000 for
failing to donate proceeds from the sale of The Whole Pantry app,
as publicly advertised; $50,000 for failing to donate proceeds from
the launch of The Whole Pantry app (28 September 2017).
More...
NOTE: In 2016, Penguin Australia agreed to pay
Consumer Affairs Victoria $30,000 and include a prominent warning
notice on any future books making statements about natural
therapies, as part of an 'enforceable undertaking'
following its publication of the book
Full Federal Court dismisses ACCC's appeal in
Australian Egg Corporation case
The ACCC had alleged that at an 'Egg Oversupply Crisis
Meeting', held by AECL and attended by egg producers, the AECL
and the other respondents had attempted to induce egg producers to
enter into a cartel arrangement to reduce the supply of eggs, in
response to a perceived oversupply of eggs. The ACCC appealed to
the Full Federal Court, who dismissed the ACCC's appeal (25
September 2017).
More...
Interim gas report finds substantial shortfall for east
coast likely in 2018
The interim report projects a supply shortfall in the east coast
gas market of up to 55 petajoules (PJ) in 2018,
which could be as high as 108 PJ if domestic demand is higher than
expected," ACCC Chairman Rod Sims said.. "Gas and
gas-powered generators are also an important part of electricity
generation, so higher gas prices feed in to higher electricity
prices, leading to a double hit for many." (25 September
2017).
More...
ACCC appeals LG decision
The ACCC had alleged that LG made false or misleading
representations to certain consumers about their right to a repair,
replacement or refund in relation to faulty LG televisions. The
Court dismissed the ACCC's allegations, finding that LG was
under no obligation to inform these consumers of the existence of
the Australian Consumer Law remedies available to them because the
enquiry made by consumers related only to the manufacturer's
warranty (25 September 2017).
More...
ACCC chief backs inquiry into tech giants' market
dominance
The Australian Competition and Consumer Commission chairman, Rod
Sims, says it is a good idea to examine the market dominance of the
tech giants Google and Facebook, and consider the implications for
funding traditional media organisations (22 September 2017).
More...
In practice and courts, published reports
Gas inquiry 2017-2020: interim report
Australian Competition and Consumer Commission - The ACCC has
released its first interim report of its inquiry into gas supply
arrangements in Australia, which focuses on likely supply and
demand conditions in the east coast gas market for 2018 (25
September 2017).
More...
NSW Fair Trading: Inquiry into NSW retirement
villages
The inquiry will review the protections offered to residents, and
ensure that Fair Trading has the necessary powers to make sure
retirement village operators are complying with the law. The
investigation will look at concerns raised about the fairness and
transparency of business practices of retirement villages in NSW.
The final report and recommendations from the inquiry are due to be
completed by 15 December 2017.
More...
More....
Cases
Director of Consumer Affairs Victoria v Gibson (No 3) [2017]
FCA 1148
CONSUMER LAW – contravention of s 21 of Australian
Consumer Law (Vic) – pecuniary penalties under s 224 of
Australian Consumer Law (Vic) – relevant
considerations for assessment of pecuniary penalty – whether
publication orders should be made – considerations where
respondent does not participate in proceedings. Australian
Consumer Law (Vic), ss 18, 21, 224, 226, 246, 247. Australian
Consumer Law and Fair Trading Act 2012 (Vic), s 134(2)(a).
Competition and Consumer Act 2010 (Cth), Sch 2,
Australian Consumer Law (Cth), ss 18, 21.
Australian Competition and Consumer Commission v Australian
Competition Tribunal [2017]
FCAFC 150
COMPETITION – merger clearances and authorisations –
authorisation granted by Australian Competition Tribunal for merger
– Tribunal satisfied that proposed acquisition would result,
or be likely to result, in such a benefit to public that
acquisition should be allowed to occur – proper construction
of s 95AZH of Competition and Consumer Act 2010 (Cth)
– consideration of relationship between test in s 95AZH and
concept of 'substantial lessening of competition' in s
50.
ADMINISTRATIVE LAW – whether Tribunal misconstrued and
misapplied s 95AZH by importing test from s 50 – whether
failure to take into account relevant considerations –
whether Tribunal erred in law by failing to deal with a central
issue raised by party to application – whether Tribunal
required to compare likely future state of competition with and
without proposed acquisition – whether Tribunal required to
assign lesser weight to benefits flowing from proposed acquisition
not likely to be widely shared – whether Tribunal made
irrational and illogical findings.
Australian Competition and Consumer Commission v Australian Egg
Corporation Limited [2017]
FCAFC 152
COMPETITION – consideration of an appeal by the Australian
Competition and Consumer Commission against an order of the Federal
Court dismissing a proceeding alleging a contravention of s 44ZZRJ
of the Competition and Consumer Act 2010 (Cth) by an
industry body and others – where the primary judge found
evidence established conduct by at least two respondents which
could constitute an attempt in the requisite sense – where
the primary judge also found that the respondents intended that the
attendees at a certain meeting should take action to address and
correct an oversupply of eggs – where the primary judge was
not persuaded "to the requisite degree of persuasion"
that the respondents intended that this action should be pursuant
to an agreement or understanding involving reciprocal
obligations.
PRACTICE AND PROCEDURE – where the Court on appeal is to
consider an allegation that the primary judge erred in the
inferences he drew or failed to draw from established primary facts
– where the primary judge refused to draw an inference going
to the intention of the respective respondents – where the
ACCC's case was documentary and did not call any witnesses
– where the primary judge did not wholly accept or reject the
evidence of any respondent witness – where there were no
challenges to the primary judge's findings as to credibility
and reliability – where the matter under challenge is not a
matter where there is only one right answer – whether, in the
absence of a preponderance of view against that taken by the
primary judge, the primary judge's refusal to draw an inference
of intention should be disturbed. Competition and Consumer Act
2010 (Cth) ss 2A, 4, 44ZZRD, 44ZZRJ, 76, 84.
Australian Competition and Consumer Commission v Australian
Competition Tribunal [2017]
FCAFC 150
COMPETITION – merger clearances and authorisations –
authorisation granted by Australian Competition Tribunal for merger
– Tribunal satisfied that proposed acquisition would result,
or be likely to result, in such a benefit to public that
acquisition should be allowed to occur – proper construction
of s 95AZH of Competition and Consumer Act 2010 (Cth)
– consideration of relationship between test in s 95AZH and
concept of 'substantial lessening of competition' in s
50.
ADMINISTRATIVE LAW – whether Tribunal misconstrued and
misapplied s 95AZH by importing test from s 50 – whether
failure to take into account relevant considerations –
whether Tribunal erred in law by failing to deal with a central
issue raised by party to application – whether Tribunal
required to compare likely future state of competition with and
without proposed acquisition – whether Tribunal required to
assign lesser weight to benefits flowing from proposed acquisition
not likely to be widely shared – whether Tribunal made
irrational and illogical findings - Constitution s 92.
Stroppiana v Mackay Sugar Ltd [2017]
QSC 217
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the Cane
Supply and Processing Agreement between the parties is subject to
the Sugar Industry Act 1999 (Qld) – where the
respondent purported to vary provisions of the Cane Supply and
Processing Agreement by agreement with bargaining representatives
of growers – whether the Cane Supply and Processing Agreement
can be varied without agreement and signatures of each individual
grower.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where a Cane
Supply and Processing Agreement between the parties provides that
"Other expense items that are deemed to be applicable to all
sales of sugar" are to be deducted from cane payments under
the agreement –whether the respondent may unilaterally deem a
charge of $2 per tonne of cane for the operating cost, repair,
improvement and maintenance of the respondent's infrastructure
to be an expense applicable to all sales of sugar.
Director of Consumer Affairs Victoria v Gibson (No 3) [2017]
FCA 1148
CONSUMER LAW – contravention of s 21 of Australian Consumer
Law (Vic) – pecuniary penalties under s 224 of Australian
Consumer Law (Vic) – relevant considerations for
assessment of pecuniary penalty – whether publication orders
should be made – considerations where respondent does not
participate in proceedings. Australian Consumer Law (Vic),
ss 18, 21, 224, 226, 246, 247. Australian Consumer Law and Fair
Trading Act 2012 (Vic), s 134(2)(a). Competition and
Consumer Act 2010 (Cth), Sch 2, Australian Consumer
Law (Cth), ss 18, 21.
PUBLIC NOTICE – ANNABELLE NATALIE GIBSON
Section 246 of the Australian Consumer Law
(Victoria)
This Notice has been published pursuant to an Order of the Federal
Court of Australia.
Following legal proceedings commenced by the Director of Consumer
Affairs Victoria, the Federal Court of Australia found that
Annabelle Natalie Gibson engaged in misleading or deceptive conduct
by making representations in the promotion of "The Whole
Pantry" book and mobile applications concerning her health.
The Federal Court also found that Ms Gibson engaged in misleading
or deceptive conduct and unconscionable conduct by making claims in
the promotion of the "Whole Pantry" book and app claiming
that certain proceeds of sales of the book and app were being given
to charities and good causes.
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.