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Inside track: Competition & Consumer

12 May 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Consumer Data Right Compliance and Enforcement Policy released
The ACCC and the Office of the Australian Information Commissioner (OAIC) jointly released the Compliance and Enforcement Policy for the Consumer Data Right. The Policy outlines the approach that the ACCC and the OAIC have adopted to encourage compliance with, and address breaches of, the Consumer Data Right regulatory framework (08 May 2020).  More...

Federal Court dismisses ACCC appeal on PN Aurizon case
The ACCC has dismissed the ACCC’s appeal against a 2019 Federal Court decision which found that Pacific National’s acquisition of Acacia Ridge Terminal in Brisbane would not substantially lessen competition as a result of undertakings given by PN. As a result of the appeal the acquisition can proceed without that undertaking. The ACCC is considering the judgment (06 May 2020).  More...

Director banned for seven years by ASIC
ASIC found that he had failed to act in the best interest of clients, was not competent to provide financial product advice, was likely to contravene financial services law and was involved in contraventions by Olive where it engaged in misleading or deceptive conduct and made false or misleading statements (05 May 2020).  More...

TWE served another class action
Treasury Wine Estates (TWE) has been served with another class action alleging the business engaged in misleading and deceptive conduct. TWE said in a statement to the ASX that it “strongly denies any and all allegations of wrongdoing and intends to vigorously defend the further proceeding.” (04 May 2020).  More...

Flight Centre stops charging cancellation fees for trips affected by coronavirus
The travel agent chain backs down from charging hundreds of dollars in cancellation fees for trips cancelled due to COVID-19 restrictions, following pressure from customers and the Australian Competition and Consumer Commission (02 May 2020).  More...

Pub owners to pay $380,000 in damages over secret beer tap deals
South Australia's Supreme Court has ordered the directors of a prominent Adelaide hotels syndicate concealed lucrative deals with major breweries from their then-business partners. Although the court found the publicans had engaged in misleading and deceptive conduct and breached consumer law, it rejected the plaintiffs' further claim for breaches of the shareholder agreement in relation to the hotel (01 May 2020). More...

ACCC’s bank review creates interest
The Australian Competition and Consumer Commission (ACCC) has published an interim report from its Home Loan Price Inquiry showing that the big four banks placed recovering profits above passing on lower interest rates to mortgage customers (30 April 2020).  More... 

Sydney's ELB awarded $1.35 million in damages over acquisition of AV reseller
Sydney-based unified communications and interactive display reseller ELB has been awarded $1.35 million in damages from the former directors of one of its subsidiaries. The New South Wales Supreme Court ruled the former directors of Broadreach Consulting had engaged in misleading and deceptive conduct when the company was sold to ELB in 2015. (28 April 2020).  More...

STA Travel to pay $14 million in penalties for misleading advertisements
The Federal Court has ordered that STA Travel Pty Ltd  pay $14 million in penalties for making false or misleading claims when advertising its MultiFLEX Pass product. STA Travel admitted that, between March 2014 and August 2019, it made misleading representations in MultiFLEX Pass advertising that consumers who bought the airfare add-on could change their flights without paying fees or charges (24 April 2020).  More...

Competition watchdog warns Qantas against anti-competitive behaviour
The ACCC warns Qantas it will take swift action against anti-competitive behaviour such as attempts to swamp airline routes, artificially push down prices or lock in exclusive deals with airports and suppliers (24 April 2020).  More... 

Petrol stations accused of gouging as some Queenslanders pay 75 per cent more
While the price of petrol falls to the lowest point in a generation in Brisbane, service stations are charging 30 per cent more in north Queensland and 75 per cent more in Mt Isa, with a federal MP raising accusations of collusion (24 April 2020).  More...

Practice and regulation

ACCC:  COVID-19 (coronavirus) information for small business
On this page you will find the latest information on the rights and obligations of small business in response to events caused by the COVID-19 pandemic. Businesses should continue to be mindful of their obligations under the Australian Consumer Law, which include:

  • to not mislead customers, including about what the customer is entitled to under their terms and conditions
  • to not act unconscionably when dealing with their customers
  • to not seek to rely on unfair terms in standard form contracts with customers (08 May 2020).  More...

ACCC consultation update: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26 GHz spectrum licences, the potential uses for the spectrum, the markets where this spectrum will be used, and any competition issues associated with how this spectrum is allocated. The Minister has asked for the ACCC’s advice by mid-May 2020. The consultation paper is available at Spectrum Competition Limits

Cases

Moore v Scenic Tours Pty Ltd [2020] HCA 17
Appeal allowed. Damages – Consumer guarantees – Personal injury – Where appellant booked holiday cruise tour supplied by respondent – Where holiday cruise tour severely disrupted by adverse weather conditions – Where respondent breached consumer guarantees in ss 60 and 61 of Australian Consumer Law ("ACL") – Where appellant claimed damages for disappointment and distress – Where s 275 of ACL provided that where failure to comply with consumer guarantee that applies to supply of services and State law proper law of contract, that law applies to limit or preclude liability for failure and recovery of liability as it would for breach of contract – Where New South Wales proper law of contract – Where s 16(1) of Civil Liability Act 2002 (NSW) ("CLA") precluded damages for non-economic loss in relation to personal injury cases unless non-economic loss at least 15% of most extreme case – Where threshold in s 16(1) not reached – Whether s 275 of ACL picked up and applied s 16 of CLA as surrogate federal law – Whether s 16 of CLA applied to preclude damages for disappointment and distress not consequential upon physical or psychiatric injury.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 60, 61, 267, 275; Civil Liability Act 2002 (NSW), ss 3, 11, 11A, 16 

Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77
COMPETITION – proposed acquisition of the Acacia Ridge Terminal in Brisbane – alleged contravention of s 50 of the Competition and Consumer Act 2010 (Cth) – market definition – economic tests for defining a price discrimination market – whether conduct likely to have the effect of substantially lessening competition in a market – meaning of “likely” – standard of proof to be applied to predictions about future facts and circumstances – vertical merger – ability and incentive to engage in price discrimination – whether raising barriers to entry sufficient to establish a substantial lessening of competition – likelihood of new entry – new entry a mere possibility
UNDERTAKING – whether undertaking to the Court proffered by acquirer should be accepted – whether Court has power to accept the undertaking – whether power arises under the Federal Court of Australia Act 1976 (Cth) or only under s 80 of the Competition and Consumer Act 2010 (Cth) – whether acceptance of the undertaking would infringe Chapter III of the Constitution by attempting to confer a non-judicial power on the Federal Court ‑– where undertaking is outside of the relief sought by the Australian Competition and Consumer Commission – whether undertaking is sufficiently certain as to be enforceable – whether primary judge erred in fact or principle in accepting undertaking
Competition and Consumer Act 2010 (Cth) ss 2, 4E, 4G, 45AD, 45D, 45DA, 45DB, 46, 47, 50, 50A, 52, 80, 87B, 90, 163A; Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Cth)
Trade Practices Amendment Act 1977 (Cth; Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth) 

Braham v ACN 101 482 580 Pty Ltd [2020] VSCA 108
CONSUMER LAW – Misleading or deceptive conduct – Partnership agreement prepared by lawyer for promoter of failed investment scheme – Whether preparation of partnership agreement amounted to representation by lawyer to non–client investor as to compliance with taxation ruling – Whether non-disclosure of ‘qualifying fact’ – Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592, considered – Whether representation by lawyer to client promoter – Alleged ‘indirect’ causation of loss to investor – TPT Patrol Pty Ltd v Myer Holdings Ltd (2019) 140 ACSR 38, 316-7 [1656]-[1660], considered – Whether lawyer’s retainer precludes finding of misleading or deceptive conduct outside scope of retainer – Extent of retainer not dispositive but relevant contextual feature – Watkins v De Varda [2003] NSWCA 242, distinguished – No representation – No failure to disclose.

Legislation

Commonwealth

Competition and Consumer (Industry Code – Electricity Retail) (Model Annual Usage and Total Annual Prices) Determination 2020
01/05/2020 - This instrument sets out the Australian Energy Regulator (AER) determined per-customer amount of electricity supplied in specified distribution regions to small customer, the AER determined timing or pattern of the supply of electricity in specified distribution regions to small customers and the AER determined reasonable per-customer annual price for supplying electricity in specified distribution regions to small customers.

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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