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Inside track: Competition & Consumer

10 May 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Vic Solar Technologies and Sunny Srinivasan - Court outcome
A solar panel retailer which made misleading representations to consumers, failed to comply with legal protections for unsolicited consumer agreements and engaged in unconscionable conduct, among other breaches of the Australian Consumer Law, has been fined $3 million in the Federal Court, and its Director ordered to pay $450,000 (06 May 2021).
Read the ACCC statement here (05 May 2021).

TasPorts declared to have misused its market power
The Federal Court has declared by consent that Tasmanian Ports Corporation Pty Ltd engaged in conduct that had the likely effect of substantially lessening competition in the markets for towage and pilotage services in northern Tasmania. TasPorts did not have a legal right to impose the new port charge, and sought to impose the charge without conducting a full assessment of the cost of providing access services to Grange (05 May 2021).  More...

Telstra pays $1.5 million penalty for breaching customer rights
Telstra Corporation Ltd has paid an infringement notice of more than $1,500,000 after the ACMA found it failed to provide consumers with the opportunity to keep their existing local phone number when changing telcos. It is clear Telstra, for a sustained period, did not have sufficient plans in place to comply with an important consumer safeguard that promotes competition in the telco market (04 May 2021).  More...

Real estate agent wins appeal against 'unconscionable conduct' finding after buying pensioner's house below market value
Adelaide real estate agent Zane Pitt says he is "very, very happy" after a court ruled that the pensioner he bought a house from for $175,000 did not have a "special disadvantage" during the transaction. Mr Pitt's daughter subdivided and built two properties on the block, which went on to sell for a total of $765,000 (03 May 2021).  More...

Landside port charges are rising and transport operators are taking the hit
As any transport operator who regularly loads or unloads at a port would know stevedore charges have never been higher. NatRoad is currently engaging with the Federal Government and the ACCC on this subject and is seeking for greater intervention so that price gouging does not occur (29 April 2021).  More...

Megasave and Gary Bourne to pay penalties for misleading prospective franchisees
The Federal Court has ordered Megasave Couriers Australia Pty Ltd (Megasave) to pay $1.9 million in penalties for making false or misleading representations to prospective franchisees, in proceedings brought by the ACCC. Megasave’s sole director Gary Bourne has also been ordered to pay a penalty of $120,000 (29 April 2021).  More...

ACCC issues public warning notice about Postage Ink
The ACCC has reasonable grounds to suspect that representatives of Postage Ink contacted various businesses and, in breach of the ACL, falsely represented that Postage Ink had an ongoing supply relationship with them, leading their staff to place orders with Postage Ink. Under the Australian Consumer Law, businesses must not engage in false, misleading or deceptive conduct, or assert a right to payment when they know they have no right to do so (29 April 2021).  More...

ASIC bans former Aus Unity AR over MySuper opt-outs
Former authorised representative for Australian Unity, Christopher Chan, has been banned for five years by the Australian Securities and Investments Commission (ASIC) for misleading clients about MySuper opt-outs. ASIC surveillance had found that Chan contravened section 1041H of the Corporations Act by sending misleading and deceptive emails to clients in 2016 (29 April 2021).  More...

Solar panels, cooler summer drive power prices into negative territory in South Australia
The Australian Energy Regulator slashed the Default Market Offer (DMO) for customers in states, including South Australia. The DMO is "the maximum price an electricity retailer can charge a standing offer customer each year" and is intended to protect consumers from price gouging (28 April 2021).  More...

Freight brokers get green light to collectively bargain
A group of Australian freight brokers have permission from the consumer watchdog to collectively bargain agreements with freight carriers. Lodged by KIS Transport Australia, the notification will remain in force for a period of six years as requested by KIS, instead of the default period of three years, the ACCC announced (30 April 2021).  More...

Dominance of Apple and Google’s app stores impacting competition and consumers
App developers need fair and reasonable terms when dealing with app stores and better processes for the approval of apps to help address the consequences of Google and Apple’s power in the app market, the ACCC has found in a report released on 28 April 2021.
Note: The ACCC will revisit the issues raised in this report during the course of the five-year Digital Platform Services Inquiry and will take into account steps by Apple and Google to address the concerns identified. The full report is available here.

Practice and Regulation

ACCC feedback: Choice and competition in search and browsers
The ACCC has released an issues paper, ‘Digital Platform Services Inquiry – September 2021 Report on market dynamics and consumer choice screens in search services and web browsers’. It is seeking submissions in response to the issues paper by 15 April 2021.  More...

Cases

Jiangsu Lianguan Zhaoxing Petrochemical Science and Technology Co Ltd v Wu & Anor [2021] VSC 228
TRADE PRACTICES — misleading and deceptive conduct — first defendant made false representations regarding the opportunity for the plaintiff to supply large quantities of pipes to Australian companies — first defendant knew that the representations were false and intended the plaintiff to act in reliance upon representations — no reasonable grounds for making representations — first defendant engaged in fraudulent conduct by forging 13 documents — first defendant not entitled to an order apportioning liability for damages with second defendant — Competition and Consumer Act 2010 (Cth) ss 87CC, 87CD — Australian Consumer Law ss 4, 18, 236.
DECEIT — first defendant made representations knowing they were false and intending the plaintiff to rely upon them — plaintiff suffered loss and damage acting in reliance on representations — first defendant not entitled to an order apportioning liability under Part IVAA Wrongs Act — Wrongs Act ss 24AF, 24AH, 24AI, 24AM.

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (No 2) [2021] FCA 453
CONSUMER LAW – relief where applicant was found to have contravened ss 18 and 29(1)(m) on one occasion – where parties jointly proposed agreed relief comprising a declaration regarding the contraventions and a pecuniary penalty – whether the Court should exercise discretion to make the declaration – whether the proposed agreed pecuniary penalty is an appropriate penalty – declaration made – proposed agreed pecuniary penalty appropriate and orders made accordingly.
Competition and Consumer Act 2020 (Cth) Schedule 2 – Australian Consumer Law ss 18, 29(1)(m), 224, 259(3), 260, 263(4); Federal Court of Australia Act 1976 (Cth) s 21.

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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