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Inside track: Competition and Consumer Law

10 December 2018

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Seednet to pay $1m penalty for misleading barley performance claims
The Federal Court has ordered Landmark Operations Limited (trading as Seednet) to pay a $1 million penalty for making false, misleading and deceptive claims in a fact sheet for its barley variety known as ‘Compass’. “Seednet’s conduct was unacceptable because it misled farmers into sowing barley crops under a false impression about the qualities of the crops they were planting" (07 December 2018).  More... 

Fines from Hobart's new infra-red parking system may not be enforceable, expert says
The council's general manager Nick Heath said APARC were successful over a number of other bidders for this contract and we are aware that this has caused some angst among their competitors. There is currently a similar, but even larger, tender process for smart parking underway in Perth, Western Australia, where a number of APARC competitors have made various claims in order to disadvantage others in that process (07 December 2018).  More...  

Former Murray Goulburn boss Gary Helou fined $200,000 following Federal Court settlement approval
The Federal Court has approved a settlement reached between Murray Goulburn and the ACCC which will see its former managing director hit with a $200,000 fine. The ACCC launched proceedings against Murray Goulburn last year, alleging it had engaged in unconscionable conduct and made false or misleading representations in breach of Australian consumer law (06 December 2018).  More...  
ACCC statement here.  

Internet provider Activ8me in court for alleged misleading advertisements
The ACCC has instituted proceedings against internet provider Australian Private Networks Pty Ltd (trading as Activ8me) in the Federal Court for allegedly making false or misleading representations in three direct mail advertisements and five online banner advertisements marketing its Opticomm fibre-to-the-premises (FTTP) packages (05 December 2018).  More... 

PM fast-tracks divestment powers amid High Court threat
Powers enabling the forced divestment of energy assets could be law early next year with the government rushed legislation though the lower house, sight unseen. But the energy companies signalled a fight, confirming they were actively considering a High Court challenge to the laws on the grounds they were still unconstitutional despite being watered down, and that they allowed unprecedented interference in terms of price fixing (05 December 2018).  More...  

ACCC takes action against TPG for misleading customers
The ACCC has instituted proceedings in the Federal Court against TPG Internet Pty Ltd (TPG) for engaging in misleading conduct about a $20 ‘prepayment’ made by consumers, and including unfair prepayment contract terms in some of the telco’s plans. The ACCC alleges that TPG’s representations to customers about the forfeiture and automatic ‘top-up’ function are misleading (04 December 2018).  More... 

It's crunch time for tech giants, as ACCC probe enters home stretch
The ACCC is expected to release a draft report from its 'world-first' inquiry into the impact of digital platforms such as Facebook and Google on traditional media. The inquiry is supposed to focus on the market power of the digital platforms, whether that is impacting the quality of news consumers receive, and how it is affecting media and advertising markets more broadly (03 December 2018).  More... 

Court rules fish oil capsules not ‘Made in Australia'
The Federal Court has ruled that the encapsulation in Australia of imported fish oil and Vitamin D by Nature's Care Manufacture Pty Ltd (Nature’s Care) would not permit the capsules to be labelled ‘Made in Australia’ under the Australian Consumer Law’s (ACL) Country of Origin labelling provisions (03 December 2018).  More... 

Visy Recycling, Cleanaway and Suez remove potentially unfair contract terms
Visy Paper Pty Ltd (trading as Visy Recycling), Cleanaway Pty Ltd and Suez Recycling & Recovery Pty Ltd have agreed to make changes to their price variation and liquidated damages clauses that previously allowed them to unilaterally increase their prices in specified circumstances and impose penalties on customers who wanted to exit their contracts before the end of the contract term (03 December 2018).  More... 

Melbourne South Eastern Real Estate Pty Ltd - Court outcome
A company that operates three Barry Plant estate agent offices in Melbourne will pay $720,000, after the Federal Court of Australia found it engaged in misleading or deceptive conduct and making false representations about property sales (30 November 2018).  More...  

Canberra petrol stations to be banned from advertising discount fuel prices
Canberra already has some of the highest petrol prices in the country, but changes announced will stop the cost of fuel being understated by retailers that often advertise discounted prices prominently (28 November 2018).  More... 

Supré fined for misleading consumers on price
The Queensland Office of Fair Trading has fined fashion company Supré Pty Ltd $12,600 after finding the company made misleading representations about the price of clothing at its Chermside store (28 November 2018).  More...  

Belle Gibson faces jail time if $410k fine for cancer fraud goes unpaid
A Federal Court judge has warned fake wellness blogger Belle Gibson she could go to jail if she does not pay $410,000 for duping customers and breaching Australian consumer law (27 November 2018).  More... 

Practice and Regulation

ACCC discussion paper: electricity monitoring
The ACCC has released a discussion paper relating to how it will conduct its new role of monitoring and reporting on supply of electricity in the National Electricity Market. Submissions are sought on three key areas. Submissions close 19 December. The first report is due to the Treasurer on 31 March 2019. See the media release here and to view the discussion paper here. 

Therapeutic goods advertising code
The Therapeutic Goods Advertising Code (the Code) ensures that the marketing and advertising of therapeutic goods is conducted in a manner that promotes the quality use of the product, is socially responsible and does not mislead or deceive the consumer. On 1 January 2019, the Therapeutic Goods Advertising Code (No. 2) 2018 will take effect. The differences between the 2018 code and the 2018 code #2 are summarised here.

Competition law should remain focused on consumer welfare
Keynote address delivered to the RBB Economics Annual Conference, Sydney 29 November 2018
ACCC Chair Rod Sims defended the consumer welfare standard, stating that competition law and policy 'should be first and foremost about protecting and promoting competition for the welfare of consumers' and while this might achieve other objectives, like income distribution, these broader public interest considerations should not be introduced into the core of competition law enforcement. See full transcript here.  

Report to the Australian Senate on anti-competitive and other practices by health insurers and providers in relation to private health insurance
Australian Competition and Consumer Commission: 26 November 2018
This report analyses key competition and consumer developments and trends in the private health insurance industry between 1 July 2017 and 30 June 2018, including ACCC enforcement and other actions relating to the health sector.  More...  

Cases

Australian Competition and Consumer Commission v Landmark Operations Limited (t/a Seednet) [2018] FCA 1977
CONSUMER LAW – where applicant and respondent reached agreement as to liability and applicable penalties for respondent’s breach of the Australian Consumer Law – where respondent made representations about quality and capabilities of a new agricultural product on the market – consideration of principles for penalties – court approved parties’ agreement and made orders sought.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 29(1), 33, 224

Australian Competition and Consumer Commission v Murray Goulburn Co-Operative Co Limited [2018] FCA 1964
CONSUMER LAW – assessment of pecuniary penalty – number of contraventions – course of conduct principle –misleading or deceptive conduct – decline in commodity prices – representations made to dairy farmers – representations as to the forecasted final Farmgate Milk Price – contraventions of the Australian Consumer Law – involvement of managing director in contraventions – co-operation by way of agreed facts and joint submissions – penalty assessed – declarations granted.
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law Pt 3-1, ss 18, 29(1)(i), 224(1)(a)(ii), 224(1)(e), 224(2) and 224(3); Evidence Act 1995 (Cth) s 191

Nature's Care Manufacture Pty Ltd v Australian Made Campaign Limited [2018] FCA 1936
CONSUMER LAW – Australian Consumer Law s 255 – safe harbour provisions – country of origin representations – whether fish oil and vitamin D capsules substantially transformed in Australia – where fish oil and vitamin D imported into Australia – where Applicant seeks to continue using ‘Australian Made’ logo on product. Competition and Consumer Act 2010 sch 2 s 255

Stowe v Johnson [2018] QSC 278
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – where the plaintiff invested in a property management business and lent money to the business – where the plaintiff lost the money he invested, and failed to recover it as an unsecured creditor – where the plaintiff now claims damages under s1041I of the Corporations Act 2001 (Cth) for misleading or deceptive conduct; s 12GF of the Australian Securities and Investment Commission Act 2001 (Cth) for misleading or deceptive conduct; s 82 of the Trade Practices Act 1974 (Cth) for misleading or deceptive conduct/false or misleading representations or for negligent misstatement – whether the defendant made false or misleading representations to the plaintiff which induced him to invest in the business.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – where the plaintiff claimed damages for unconscionable conduct under section 12GF of the ASIC Act – whether the defendant’s dealings with “the funding of the Cameo business” constituted unconscionable conduct
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE BREACH AND DEFENCES TO ACTIONS FOR BREACH – PERFORMANCE – where the plaintiff claimed damages for breach of contract – whether the defendant breached a term that she be “just and faithful” in her dealings with the plaintiff – whether the defendant breached a term that she would “ensure” that the trust would pay its debts and meet its obligations. 

Contacts:
Melbourne

Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
E: howard.rapke@holdingredlich.com

Sydney
Ian Robertson, National Managing Partner
T: +61 2 8083 0401
E: ian.robertson@holdingredlich.com

Brisbane
Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613
E: paul.venus@holdingredlich.com

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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