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Inside track: Competition & Consumer Law

16 September 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

In the media

Telco provider BVivid pays penalties and will release consumers from contracts
The ACCC has accepted a court-enforceable undertaking from telco provider BVivid Pty Ltd (BVivid) for making telemarketing calls to consumers in areas transitioning to the NBN that BVivid has admitted likely breached the Australian Consumer Law (ACL). ACCC Commissioner Sarah Court said BVivid’s calls likely misled consumers and gave them a false sense of urgency and need (10 September 2019).  More...

ASIC commences court action against Select AFSL over phone sales of life insurance
ASIC alleges that Select, BlueInc and/or IMS, in their dealings with 14 consumers, engaged in conduct in breach of provisions of the Australian Securities and Investments Commission Act 2001 (Cth), including for some or all of the consumers: making false and/or misleading representations (09 September 2019).  More...

ACMA issues $88,200 in infringement notices under NBN rules
The Australian Communications and Media Authority (ACMA) has said failing to give consumers clear and honest information about NBN plans is unacceptable and can lead to misleading conduct as recently highlighted by the recent Telecommunications Industry Ombudsman’s report (06 September 2019).  More...

LG to pay $160,000 for misleading representations to two consumers
The Full Court found that LG made misleading representations to two consumers who believed they had purchased faulty televisions, when it implied on phone calls they had no rights other than those under LG’s manufacturer’s warranties (06 September 2019).  More...

Cartel immunity policy strengthened, whistleblowing tool launched
The updated immunity policy, which has been informed by experience gathered during key criminal investigations, will come into effect on 1 October 2019. It will continue to cover cartel conduct such as price-fixing, market sharing, bid rigging and customer allocation, and will clarify that the policy does not cover anti-competitive concerted practices (06 September 2019).  More...

Class action against Radio Rentals leads to $29 million settlement
Radio Rentals' controversial 'Rent, Buy, $1 Buy' scheme has come back to bite more than two years after a class action filed by Maurice Blackburn Lawyers alleging unconscionable conduct (03 September 2019).  More...

Medibank in court for alleged misrepresentations to members about benefits
The ACCC has instituted proceedings in the Federal Court against Medibank Private Limited trading as ‘ahm Health Insurance’ (Medibank), alleging that Medibank made false representations about benefits covered by its health insurance policies, in breach of the Australian Consumer Law (03 September 2019).  More...

Practice and regulation 

Customer loyalty schemes: draft report
Australian Competition and Consumer Commission: 05 September 2019
The ACCC has examined consumer and competition issues that are associated with consumer-facing customer loyalty schemes in Australia, including the way in which customer loyalty schemes collect, use and disclose consumer data. The operators of customer loyalty schemes must ensure they comply with the Australian Consumer Law (ACL). It is also paramount that the operators of customer loyalty schemes ensure consumers have a genuine opportunity to review and understand the policy and operation of customer loyalty schemes to avoid misleading and deceptive conduct. More...

ACCC cartel immunity and cooperation policy effective on 1 October 2019
Under the revised policy, applicants seeking immunity will now be asked to enter into a cooperation agreement early in the immunity process, which will clearly set out the steps required for conditional civil and criminal immunity. The policy will also clarify a number of issues related to eligibility for immunity, the level of cooperation required, how information is used and confidentiality. The first party to report cartel conduct to the ACCC may be eligible for civil and criminal immunity. See the ACCC policy here (06 September 2019). 

ACCC: New guidelines on repeal of intellectual property exemption issued
Changes to parts of Australia’s competition law relating to intellectual property (IP) matters, effective from 13 September 2019, are explained in new ACCC guidelines. See the guidelines on the repeal of subsection 51(3) of the Competition and Consumer Act here. Note: The repeal of subsection 51(3) means that certain types of IP-related conduct are no longer exempt from the cartel prohibitions, section 45 (anti-competitive agreements) and section 47 (exclusive dealing) of the Competition and Consumer Act (CCA).

New Gift Card Laws
The Australian Consumer Law (ACL) has been amended to provide protections for gift card consumers across Australia. With some exemptions, the ACL will: require minimum three year expiry periods for gift cards; require gift cards to display expiry dates; and ban most post purchase fees on gift cards. These changes apply to gift cards supplied to consumers on or after 1 November 2019. Further information can be found in the Explanatory Memorandum to the Treasury Laws Amendment (Gift Cards) Act 2018 and the Explanatory Statement to the Treasury Laws Amendment (Gift Card) Regulations 2018.

Current Senate Inquiries 2019 - Environment and Communications Legislation Committee
Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019

ACCC digital platforms inquiry reminder
The report contains 23 recommendations, spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms. Before a detailed Government response is provided a further consultation process will take place. It will run for 12 weeks, after which the Government intends to release its response (by the end of 2019). Further details to follow on digital platforms page.

Reminder: ACCC draft guidelines on repeal of subsection 51(3) of the CCA
The draft guidelines outline the ACCC’s approach to enforcing the CCA following the repeal, where certain conduct involving intellectual property rights was exempt from certain parts of the competition law, from 13 September 2019. 

Cases

National Roads and Motorists' Association Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491
TRADE MARKS – infringement proceeding under ss 120(1) and (3) of the Trade Marks Act 1995 (Cth) – where a trade union is using a sign depicting the applicant’s brand or logo as part of an industrial campaign against the employer – where the employer is a wholly owned subsidiary of the applicant – whether the union’s sign is being used as a trade mark – no use of the sign as a trade mark
CONSUMER LAW – claims of misleading or deceptive conduct arising from representations made during the course of an industrial campaign – whether impugned conduct is “in trade or commerce” – principles derived from Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 considered – conduct not “in trade or commerce”
TORTS – claims of injurious falsehood arising from statements and representations made during an industrial campaign – malice – necessity to establish actual damage – no malice or actual damage
Competition and Consumer Act 2010 (Cth) ss 4, 6, Sch 2 ss 2, 18 and 29

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd [2019] FCAFC 154
COMPETITION – arrangement or understanding restricting dealings in respect of the application process for exploration licences for coal in the Mount Penny and Glendon Brook areas of New South Wales – whether arrangement or understanding contained an exclusionary provision – whether corporate respondents were competitors or likely competitors – whether the relevant provision was entered into for the purposes of preventing, restricting or limiting the supply or acquisition of specified services – joint venture defence – whether alleged exclusionary provision was for the purposes of a joint venture – whether other elements of s 76C defence made out. Mining Act 1982 (NSW) ss 13(4), 14, 120, 133(1), 133(2); Trade Practices Act 1974 (Cth) ss 4D, 4F, 45(2)(a)(i), 45(2)(b)(i), 76C

Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494
CONTRACT – alleged oral agreement for shared ownership of vehicular ferry – first and second defendants owned the vehicular ferry that was replaced – plaintiff contributed to purchase price for replacement ferry – whether plaintiff acquired possessory interest pursuant to agreement - significance of ‘post contractual’ conduct in proof of verbal agreement.  
TORTS – conversion – sale of ferry by first and second defendants – whether infringement of plaintiff’s possessory interest – whether conversion by auctioneer, acting on instructions of first and second defendants.  
TRADE PRACTICES – misleading or deceptive conduct – sale of island – island used for residence of first and second defendants in conjunction with operational dairy farm – representation by second defendant to third defendant (real estate agent) that ferry was an inclusion in sale – whether representation “in trade or commerce.”  
AGENCY – whether conduct constituting conversion engaged in by corporate agent gives rise only to vicarious liability of corporation – whether agent/employee personally liable in tort.

Cadence (90) Investments Pty Ltd as trustee of the GDC Discretionary Trust v Simon Dougal Chalmers [2019] NSWSC 1168
CONSUMER LAW – Australian Consumer Law sections 2, 18 and 236 – misleading or deceptive conduct in trade or commerce – person involved in contravention – where plaintiffs make an investment by way of share subscription relying on information provided by first defendant which is false because revenue is overstated – knowing involvement of the second defendant in the contravention – damages – assessment – where plaintiffs investment is worthless; HELD: plaintiffs entitled to damages against first and second defendants; LEGAL PRACTITIONERS – requirement not to communicate contentious material to a judge of the Court other than in open Court –Solicitors’ Conduct Rules – where solicitors for the first and second defendants send without leave or consent contentious material prior to a motion being heard at which they do not intend to appear – impropriety of same – reiterated that legal practitioners should not communicate in this fashion

Adam v Hasabo [2019] NSWSC 1167
RESTITUTION — Ineffective transactions — General principles — Restitution of money paid — Failure of consideration — Total failure rule — In context of joint venture or partnership — Where partner’s intention and behaviour such that the joint venture had no real existence
CONTRACTS — Misleading conduct under statute —Misleading or deceptive conduct within the meaning of s 18 of the Australian  Consumer Law — Representations and course of conduct with no intention to make good on the promises made — Damages
CONTRACTS — Breach of contract — Breach of loan agreement/s — No repayments made to date — Damages
CONTRACTS — Breach of contract — Breach of express term of deed of agreement for sale of business — Failure of condition subsequent — No repayment of amount advanced — Damages
Civil Procedure Act 2005 (NSW); Competition and Consumer Act 2010 (Cth)

Tisdall v Omeros & Anor [2019] QSC 220
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – CONDITIONS AND WARRANTIES – where the plaintiff and the defendants were together directors and shareholders of a company – where the plaintiff sold his shareholding to the defendants by way of a written share sale agreement (“SSA”) – where, after completion of the sale, the defendants caused the shares to be publicly listed – where the plaintiff contends that the defendants withheld from or did not disclose to him that they were contemplating and/or had commenced initial preparation to list the shares in the company on the Australian Stock Exchange (“ASX”) – where the plaintiff contends the defendants breached cl 9(a)(i)(A) of the SSA, by which the defendants warranted that they had not withheld from or failed to disclose to the plaintiff any material information in relation to the shares – whether breach of warranty is established
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the plaintiff contends, in the alternative, that the defendants’ alleged failure to inform the plaintiff that they were contemplating and/or had commenced initial preparation to list the company on the ASX was misleading or deceptive conduct, in contravention of s 18 of the Australian Consumer Law – where the plaintiff contends that he would not have entered into or completed the SSA had the defendants disclosed or not withheld the information, and that as a consequence of the misleading conduct, he suffered loss and damage – whether the defendants’ conduct was misleading or deceptive – whether the plaintiff suffered loss as a consequence of the defendants’ allegedly misleading or deceptive conduct
Competition and Consumer Act 2010 Cth sch 2, s 18, s 236

Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2019] FCA 1456
CONSUMER LAW – remittal by Full Court on question of appropriate relief and costs of hearing – application for pecuniary penalties, injunction and disclosure order – where respondent found to have contravened ss 18 and 29(1)(m) of the Australian  Consumer Law  – where number of contraventions proven substantially less than those alleged at trial and on appeal – consideration of principles relevant to imposition of penalties – costs
Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law, ss 18, 29(1)(m), 224, 232, 246(1)

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

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Ian Robertson AO

Ian Robertson AO

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Paul Venus

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