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Inside track: Competition & Consumer

01 September 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Small businesses navigate pandemic, misconduct and scams
Releasing its Small Business in Focus report, the ACCC said a business contacting it between January and June this year was most likely reporting false and misleading conduct, “asking about their obligations to consumers during the COVID-19 pandemic or raising concerns about consumer guarantees” (28 August 2020).   More...

New inquiry to focus on perishable agricultural supply chains
The ACCC will commence a new three-month inquiry into bargaining power in supply chains for perishable agricultural products in Australia (26 August 2020).  More...

iSignthis Ltd (ASX:ISX) $264m damages claim against ASX for misleading conduct
iSignthis has filed its amended statement of claim against the ASX Limited in the Federal Court of Australia. The amended statement of claim now also alleges misleading and deceptive conduct under section 1041H of the Corporations Act by the ASX, by publishing a 'Statement of Reasons' that purported to explain the basis of the suspension of ISX securities since the 2nd October 2019 (21 August 2020).   More...

ACCC seeks feedback on NBN pricing
Following extensive discussions with the ACCC, NBN Co has proposed measures including cheaper wholesale pricing for entry-level products to ensure an affordable product is available for consumers transitioning to the NBN, more certainty about NBN Co’s pricing and products, and stronger commitments about service standards, including rebates  (20 August 2020).  More...

HealthEngine to pay $2.9 million for misleading reviews and patient referrals
The Federal Court has ordered that HealthEngine Pty Ltd (HealthEngine) pay $2.9 million in penalties for engaging in misleading conduct in relation to the sharing of patient personal information to private health insurance brokers and publishing misleading patient reviews and ratings (20 August 2020).  More...

Practice and regulation

ACCC: Inquiry into NBN access pricing - Consultation paper on NBN Co's WBA4 proposal
On 20 August 2020, the ACCC resumed the Inquiry into NBN access pricing and the NBN wholesale service standards inquiry and released a consultation paper on NBN Co’s WBA4 proposals. The Commission said submissions would be accepted until 11 September. Further information, including a consultation paper from the ACCC and how to lodge a contribution, can be accessed here.

ACCC Consultation:  draft news media bargaining code
The ACCC has released its draft mandatory media bargaining code for consultation. The code seeks to address the fundamental bargaining power imbalance between Australian news media businesses and major digital platforms. Consultation on the draft code will now take place until 28 August 2020.  More... 

Consumer Safeguards Review Part C: Choice and fairness - consultation paper
Department of Infrastructure, Transport, Regional Development and Communications (Australia) Government of Australia: 27 July 2020
The Consumer Safeguards Review is examining what consumer safeguards are required for a changing communications environment, with a focus on the post-2020 environment. This consultation paper seeks the public's views on proposals for reform regarding choice and fairness in the retail relationship between customers. More...

ACCC Note: Screen scraping warnings not anti-competitive
The ACCC, responding to questions on notice as part of a parliamentary inquiry by the Senate Select Committee on Financial Technology and Regulatory Technology, said that “statements or warnings regarding potential security or safety risks associated with screen scraping and sharing passwords … does not appear to have the purpose or effect of substantially lessening competition.”

Consultation Reminder: Country of origin food labelling
The evaluation of country origin labelling for food will consider if the labels are helping consumers make more informed choices, as well as clarifying the origin claims that businesses can make, while avoiding excessive costs for businesses which will be passed onto shoppers.  A discussion paper and an opportunity to provide views is available  here until 11 September 2020. More information on country of origin labelling is available at here

Guidelines on Part XICA - Prohibited conduct in the energy market
These guidelines set out how the ACCC will interpret Part XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they explain the general approach the ACCC will take in investigating alleged contraventions of Part XICA (prohibiting certain conduct involving retail pricing, financial contract markets and electricity spot markets)
Part XICA will be in effect from 10 June 2020 to 1 January 2026.  More...

Cases

Australian Competition and Consumer Commission v HealthEngine Pty Ltd [2020] FCA 1203
CONSUMER LAW  – admitted contraventions of ss 18, 29(1)(b), 29(1)(e) and 34 of the Australian Consumer Law  – whether agreed declarations, orders and pecuniary penalty appropriate – application of the course of conduct principle – where agreed form of declarations, orders and pecuniary penalty approved
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian  Consumer Law ) ss 18, 29(1)(b), 29(1)(e), 34, 224(1)(a)(ii), 246(2)(b), 246(2)(c); Evidence Act 1995 (Cth) s 191; Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a) 

Liggins & Anor v Park Trent Properties Group Pty Ltd & Anor [2020] NSWSC 1113
CONTRACT – whether the plaintiffs have suffered any loss or damage by reason of any breach of contract by the first defendant. SPECIFIC PERFORMANCE – STATUTE OF LIMITATIONS – MISLEADING AND DECEPTIVE CONDUCT – plaintiffs allege that by signing the letter and causing it to be issued to the plaintiffs the second defendant engaged in misleading and deceptive conduct inducing the plaintiffs to acquire the two properties – whether the second defendant engaged in misleading or deceptive conduct – whether the plaintiffs were induced by the second defendant’s misleading or deceptive conduct to acquire the two properties – second defendant first joined into the proceedings in 2019 – whether the plaintiffs’ claim for misleading and deceptive conduct is statute barred – if misleading and deceptive conduct were established whether the plaintiffs have suffered loss or damage.
Competition and Consumer Act 2010 (Cth), Schedule 2, ss 18, 21, 22, 82(2)
This representation was said to be misleading and deceptive under the Australian Consumer Law, s 18 on much the same grounds that unconscionable conduct was pleaded against ParkTrent: that ParkTrent knew the buyback letter could not be enforced; that it had no intention of honouring its terms; and that it did not intend to buy back the properties.

Adani Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd & Ors [2020] QSC 260
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – UNCONSCIONABLE CONDUCT – WHAT CONSTITUTES – where the applicant is the owner, and the respondents are users, of a coal terminal – where user agreements exist between the applicant and the respondents –– where the respondents argue that as the result of a series of agreements the applicant in effect received payment of a previous user’s future obligations while requiring the remaining users to pay the equivalent of those obligations as charges under the user agreements – where the applicant was in a monopolistic position – where market conditions put the respondents in a vulnerable position – where applicant was acting in the interests of related corporation as well as its own interests – where there were alternative courses of action available to the applicant – whether applicant went beyond its legitimate commercial interests – pricing of monopoly asset – situational disadvantage and vulnerability – where there was no breach of contract – dishonest behaviour and want of good faith – whether the applicant’s conduct was in all the circumstances unconscionable in contravention of s 21(1) of the Australian Consumer Law
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS –
1.  Judgment is given for the first respondent against the applicant in an amount of $37.9 million.
2.Judgment  is  given  for  the  second  respondent  against  the applicant in an amount of $25.3 million.
3.Judgment is given for the third respondent against the applicant in an amount of $31.7 million.
4.Judgment is given for the fourth respondent against the applicant in an amount of $11.9 million
Competition and Consumer Act 2010 Cth; Infrastructure Investment (Asset Restructuring and Disposal) Act 2009 Qld; Queensland Competition Authority Act 1997 Qld

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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