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Inside track: Competition & Consumer Law

10 December 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

In the media

Former JPMorgan executive met with ACCC over cartel conduct, court hears
Richard Galvin has been granted immunity from prosecution over the ANZ capital-raising scandal that led to allegations of cartel conduct (05 December 2019).  More... 

Coles to pay Norco dairy farmers around $5.25 million following ACCC investigation
The payments follow an ACCC investigation into whether Coles fully passed on to Norco a 10 cents per litre (cpl) price rise it charged consumers for Coles branded fresh milk, as it claimed it would do in Coles’ marketing materials. ACCC Chair Rod Sims said they believed this was an egregious breach of the Australian Consumer Law and had  a strong case to allege misleading conduct (05 December 2019).  More... 

Port Douglas resident letting agent fined $12,000 for misleading clients
A Port Douglas resident letting agent has been ordered to pay $12,000 in fines by the Mossman Magistrates Court on 4 December 2019 following an Office of Fair Trading investigation which found she made false representations to clients, unit owners and guests (04 December 2019).  More... .

ASIC ban: cold-calling life insurance sales after royal commission scandals
Unsolicited sales calls from insurance companies will soon be a thing of the past, following a new ban from January 13 2020.  The crackdown follows revelations of unconscionable and unlawful behaviour at the financial services royal commission, using cold-calling tactics, mainly on poorer Australians and described the actions as using “misleading and deceptive conduct (04 December 2019).  More... 

Changes needed to protect consumers using customer loyalty schemes
The report recommends loyalty schemes, such as frequent flyer, supermarket and hotel operators, better inform consumers, improve their data practices and stop automatically linking members’ payment cards to their loyalty scheme profiles. The ACCC is also concerned there is an emerging risk of real consumer harm if individual consumers were to be charged inflated prices based on profiling derived from their data (03 December 2019).  More... 

ACCC considering ocean liner shipping class exemption
The ACCC is seeking comments on a possible class exemption from competition laws for liner shipping. This is in line with recommendations of the Harper Review and would ‘help clear the way for repeal of Part X’ of the CCA (03 December 2019).  More...

Kayo pays penalty for alleged misleading promotion
Streamotion Pty Ltd, trading as Kayo Sports (Kayo), has paid a penalty of $12,600 after the ACCC issued an infringement notice for allegedly misleading consumers about their eligibility for a subscription offer. “The eligibility requirement appeared in small print on Kayo’s website and was significantly less prominent than the headline offer (02 November 2019).  More... 

Optus to pay $6.4 million for misleading NBN disconnection claims
The Federal Court found that this statement was misleading or deceptive because the customers who received the email were not facing immediate disconnection of their existing broadband services. ACCC Chair Rod Sims said. They were concerned its emails created a false sense of urgency for consumers and may have discouraged them from shopping around for the best deal available (02 December 2019).  More... 

Growth fund just another 'bank cartel' say critics
Sceptics of the Morrison government's $540 million growth fund claim it will crowd out private capital, select those companies that would have received funding anyway and divide the market (28 November 2019).  More... 

Property Express Pty Ltd, Dean Anthony Johnson and Darren James Dean - Court outcome
Estate agency Property Express Pty Ltd and two of its former directors have lost their licences, after misleading clients about property prices (28 November 2019).  More... 

Court finds training college AIPE operated a system of unconscionable conduct and misled consumers
The Federal Court has found that training college Australian Institute of Professional Education Pty Ltd (AIPE) engaged in misleading or deceptive conduct and implemented a system of unconscionable conduct when enrolling consumers into online diploma courses between January 2013 and December 2015 under the former VET FEE-HELP loan program (28 November 2019).  More... 

Practice and Regulation

ACCC discussion paper:  ocean liner shipping class exemption
The ACCC is seeking comments on a possible class exemption from competition laws for liner shipping. A discussion paper has been released and submissions may be made until 28 February 2020. See ACCC, ‘Ocean liner shipping class exemption’ (class exemption register) and ACCC discussion paper - Ocean liner shipping class exemption

ACCC: Home loan price inquiry
On 14 October 2019, the Treasurer directed the ACCC to conduct an inquiry into home loan pricing. The Treasurer directed that the Inquiry cover the period from 1 January 2019. More... 

Cases

Australian Securities and Investments Commission v Dover Financial Advisers Pty Ltd [2019] FCA 1932
CORPORATIONS – false, misleading or deceptive conduct – contraventions of s 1041H of the Corporations Act 2001 (Cth) (Corporations Act) and ss 12DA(1) and 12DB(1)(i) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) – relevant principles – whether representations to a class of persons or separate representations to individuals – in the latter case, whether it is necessary to prove that individuals were misled – distinction between statements of fact and opinion – conduct found to be in contravention of s 1041H of the Corporations Act and ss 12DA(1) and 12DB(1)(i) of the ASIC Act
During the relevant period, Dover operated a financial services  advice business and held an Australian  financial services  licence (AFSL) to conduct such a business. Mr McMaster was the sole director and shareholder of Dover and a responsible manager and key person on the AFSL

Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as “STC Sports Trading Club” (No 8) [2019] NSWSC 1658
CONSUMER LAW – misleading or deceptive conduct – loss and damage – representations found to be misleading and deceptive – whether loss claimed was “because of” the fifth defendant’s conduct   CONSUMER LAW – apportionment – where apportionment not pleaded

Trani & Anor v Trani & Ors (No 2) [2019] VSC 723
COMMON LAW – breach of duty of care – admitted breach of duty by conveyancer subject to satisfaction of Court of fraud – assessment of damages in default – Supreme Court (General Civil Procedure) Rules 2015, r 51.03.
CONSUMER LAW – false and misleading representations as to certification on Transfer of Land – Whether certifications on Transfer of Land produced to Registrar of Titles were misleading and deceptive pursuant to s 18 Australian Consumer Law – evidence of a person being misled or deceived unnecessary to establish breach – claim under s 18 of the Australian Consumer Law made out – Whether provisions under s 29 apply to supply of conveyancing services – certifications made by conveyancer not connected to supply of conveyancing services - claim under s 29 not made out, Competition and Consumer Act 2010 sch 2 ‘Australian Consumer Law’, ss 18, 29.
PROPORTIONATE LIABILITY – Whether third defendant’s liability is proportionate – claim is an apportionable claim to which Part IVAA of the Wrongs Act 1958 applies and third defendant is “concurrent wrongdoer” - liability is proportionate to third defendant’s responsibility for loss and damage, Wrongs Act 1958, ss 24AI, 24 AH.

Associated Equipment Pty Ltd v Evolution Piling Pty Ltd (in liq) & Ors [2019] QDC 249
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – where the third defendant caused his company to enter into a written hire agreement for equipment – where the third defendant undertook to guarantee performance – where the hirer ceased to pay the hire rates – where the plaintiff sues the third defendant on the guarantee for unpaid hire payments – whether the plaintiff had title to the equipment hired at the time of the hire agreement – whether any obligation to pay the hire rates arose – whether the hire agreement was a sham.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – where the third defendant issued a signed tax invoice on behalf of his company disclosing a taxable supply of certain equipment to a third party – where the third defendant’s company never had title to the some of the equipment and where title did not pass to the third party for the remaining equipment – where the third defendant knew that the tax invoice was being used by the third party to obtain funds from the plaintiff as lender or buyer – whether issuing the tax invoice was misleading or deceptive conduct by impliedly representing that title to the equipment had passed to the third party – whether the plaintiff relied upon the tax invoice in purchasing the equipment from the third party – whether the plaintiff suffered loss or damage as a result of reliance upon the tax invoice. Australian Consumer Law 2011 Cth s 18, s 236; Sale of Goods Act 1896 Qld s 20, s 21
Associated Equipment Pty Ltd v Evolution Piling Pty Ltd (in liq) & Ors [2019] QDC 249

AGC INDUSTRIES PTY LTD -v- KARARA MINING LTD [2019] WASC 140
Contract - Where plaintiff contracted with defendant to carry out construction project at mine operated by defendant - Where parties entered Early Works Contract and Main Works Contract - Where plaintiff provided workforce and was reimbursed direct costs and corporate overhead and profit (COP) - Where rate of COP in Main Works Contract varied if plaintiff achieved completion of part of works by specified milestone dates
Misleading  or  deceptive conduct  - Whether defendant engaged in  misleading  or  deceptive conduct  in pre-contractual representations - Proof of oral representations - Whether representations were made as to future matters - Where plaintiff alleged it would have negotiated alternative contract but for representations - Whether plaintiff has proved loss
Australian Consumer Law, s 4, s 18, s 87
Competition and Consumer Act 2010 (Cth), s 82 , s 87
Trade Practices Act 1974 (Cth), s 52

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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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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