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Inside track: Competition & Consumer Law

09 July 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

In the media

Samsung in court for misleading phone water resistance advertisements
The ACCC has instituted proceedings in the Federal Court against Samsung Electronics Australia Pty Ltd (Samsung) alleging it made false, misleading and deceptive representations in advertising the water resistance of various ‘Galaxy’ branded mobile phones (04 July 2019).  More... 

Optus customers urged to check for refunds
Optus customers are encouraged to check if they have received an email or SMS from Optus about a refund they may be entitled to in relation to Optus’s Direct Carrier Billing (DCB) third-party billing service. In February 2019, following ACCC action, the Federal Court ordered Optus to pay penalties of $10 million for making false or misleading representations about charges for digital content (03 July 2019).  More...   

Mitsubishi ordered to repay customer over ‘misleading’ fuel label
A car giant has been ordered to repay a customer who fought back over a “misleading” fuel label attached to his new four-wheel drive. VCAT ordered the dealer to repay the customer $39,500, although Mitsubishi, which is handling the matter on Berwick Mitsubishi’s behalf, is now appealing the decision in the Supreme Court (01 July 2019).  More...  

ACCC to enforce new rules for electricity retailers
The ACCC will be enforcing new rules that will benefit most electricity consumers by both limiting standing offer electricity prices and imposing new advertising rules on electricity providers under the new Electricity Retail Code (01 July 2019).  More...  

$2.3M penalty for fake Indigenous Australian art
The Federal Court has ordered Birubi Art Pty Ltd (in liquidation) to pay $2.3 million for making false or misleading representations about products it sold in breach of the Australian Consumer Law. In October 2018, following action by the ACCC, the Federal Court found that Birubi falsely claimed that products it sold were hand painted by Australian Aboriginal persons and made in Australia when that was not true (27 June 2019).  More... 

Red Rich Fruits amends contracts with growers after ACCC concerns
A trader in apples, pears and other fresh fruits has agreed to change its horticulture produce agreements with growers after the ACCC raised concerns the agreements contained unfair contract terms, and terms which did not comply with the Horticulture Code of Conduct (25 June 2019).  More... 

ASIC takes Former Murray Goulburn execs to court
The corporate watchdog has taken former executives of dairy group Murray Goulburn to the Federal Court over alleged breaches of the Corporations Act, and further alleges that Helou engaged in misleading or deceptive conduct by approving the February 2016 announcement (25 June 2019).  More... 

Practice and Regulation

Annual Federal Courts and Tribunals Fee increases from 1 July 2019
The fees payable in the Federal Courts and Tribunals will increase from 1 July 2019 to reflect changes to the consumer price index over the past financial year. This is an automatic increase provided by the relevant fees regulations. A copy of a notice published in the Government Notices Gazette on 4 June 2019 setting out the new fees payable here

Cases

Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039
CONSUMER LAW  – representations of “biodegradable and compostable” made on labelling of disposable dish and cutlery products sold by respondent – identification of nature of representations – whether representations were as to “future matters” within meaning of s 4 of the Australian  Consumer Law  – consideration of meanings of “future matter” and “reasonable grounds” in s 4 – whether respondent had reasonable grounds for representations – application dismissed
CONSUMER LAW  – misleading or deceptive conduct – whether representations of “biodegradable and compostable” contravened ss 18, 29 or 33 of the Australian  Consumer Law  – consideration of factors relevant to identifying “ordinary and reasonable” consumer – application dismissed. Competition and Consumer Act 2010 (Cth) Sch 2, Australian  Consumer Law  (Cth) ss 4, 18, 29, 33 

Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd [2019] FCA 992
CONSUMER LAW – misleading and deceptive conduct – where the applicant alleges contraventions of ss 18, 29(1) and 33 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) arising out of the respondent’s promotion of flushable wipes – where the applicant alleges that flushable wipes caused harm to household and municipal sewerage systems – whether representations were with respect to a future matter pursuant to s 4 of the ACL – whether flushability representation was false, misleading or deceptive – flushability representation was not false, misleading or deceptive
Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) ss 4, 18, 29(1), 33
Evidence Act 1995 (Cth) s 140

Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996
CONSUMER LAW – contraventions of ss 29(1)(a), 33, Australian Consumer Law (ACL) – where respondent wholesaler engaged in conduct likely or liable to mislead or deceive potential purchasers by implying that five product lines were hand-painted by Australian Aboriginal persons and were made in Australia – consideration of principles for assessing appropriate pecuniary penalties where respondent engaged in a multitude of overlapping contraventions – consideration of the primacy of deterrence in setting an appropriate penalty – where penalties still have general deterrent effect despite the respondent being in liquidation – where public importance in sending a strong message of deterrence is heightened given the economic, social and cultural harms to Indigenous Australians which may flow from misrepresentations regarding the provenance of art and souvenirs as Australian Indigenous art and artefacts – total pecuniary penalties of $2.3 million imposed
Australian Consumer Law ss 29(1)(a), 33, 224
Resale Royalty Right for Visual Artists Act 2009 (Cth)

Mottershead Investments Pty Ltd v Aircraft Support Industries Engineering Pty Ltd (in Liquidation) & Ors [2019] FCCA 1375
CONSUMER LAW – Representations as to future conduct – promise to pay outstanding invoices – whether false or misleading – whether unconscionable conduct – whether statements relied upon – whether chose in action assigned.
CONTRACT – Outstanding invoices – contractual warranty to pay – breach of warranty – assignment of debt.
Australian Consumer Law 2010 (Cth)
The second respondent is to pay the applicant the sum of $209,000 within 14 days.

Balls & Tackles Pty Limited v International Management Group of America Pty Ltd [2019] NSWDC 290
TRADE PRACTICES – misleading and deceptive conduct – whether representations made – reliance – authority to make representations – payment of bribes – unconscionable conduct – equitable compensation

Australia and New Zealand Banking Group Limited v James (No 3) [2019] NSWSC 832
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Fraud, misrepresentation or suppressions of material fact – whether to set aside judgment by consent – whether misleading and deceptive conduct by plaintiff – discretionary considerations – whether defendant has arguable defence – delay – whether delay in advancing case of misleading and deceptive conduct disentitles defendant to relief MISLEADING AND DECEPTIVE CONDUCT – Australian Consumer Law – silence – whether reasonable expectation of being informed of information concerning activities of receivers – whether disclosure required by terms of guarantee – whether reasonable expectation of disclosure of other matters – reliance – whether defendant relied on absence of that information – whether knowledge of that information would have led defendant to not accept judgment by consent
CORPORATIONS – Receivers and managers – duties – s 420A of Corporations Act 2001 (Cth) – whether arguable defence based on this provision – scope and function of s 420A – rights of guarantors – standard imposed on receivers – exclusion by contract. 

Collective Concepts Pty Ltd v SMC Gasworks Pty Ltd [2019] NSWSC 789
CIVIL PROCEDURE – Preliminary discovery – to determine whether to commence proceedings – to identify potential cause of action for breach of warranty or statutory misleading and deceptive conduct - Australian Consumer Law 

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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Howard Rapke

Howard Rapke

Managing Partner

Melbourne

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Ian Robertson AO

Ian Robertson AO

National Managing Partner

Sydney

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Paul Venus

Paul Venus

Managing Partner

Brisbane

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