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Inside track: Competition & Consumer

10 November 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Global focus on competition and digital platforms
The ACCC is closely watching global anti-trust efforts focusing on major digital platforms, including the US Department of Justice’s recent case against Google and proposed new competition laws in Europe, ACCC Chair Rod Sims said the ACCC is focusing on the media bargaining code, our ad tech inquiry and our study examining app stores (06 November 2020).  More...

Improved wholesale arrangements benefit broadband customers
Lower entry-level prices and other proposed improvements to NBN wholesale arrangements are in the long term interests of Australian broadband customers, the ACCC has concluded in a new report. These new arrangements will promote the long term interests of broadband consumers, and balance the competing business interests of NBN Co with those of NBN access seekers (04 November 2020).  More...

Stevedores’ revenues grow despite largest drop in container volumes in a decade
ACCC chairman said these excessive terminal charges will nullify the benefits of greater competition, shipping lines contract with a single stevedore for cargo and there is no direct competition in the provision of landside services (04 November 2020).  More...

Trivago loses appeal after misleading Australian consumers over cheap hotel deals
Federal court upholds ruling that travel website promoted big-spending advertisers above cheapest options in results for hotel deals. Australia’s federal court found Trivago misled customers for its price comparison about cheap hotel deals in its TV advertising and on its website (04 November 2020).  More...

NFF, Littleproud weigh in on foreign ownership of Australian food brands
Australia’s peak farming body does not see issue with our iconic food brands becoming foreign-owned, while our Agriculture Minister would prefer they all remained in Australian hands. A special report looking at 35 iconic Aussie foods revealed only eight were now Australian-owned (04 November 2020).  More...

Spotting a Manolo from a no-no: the case of the alleged counterfeit heels
The shoemaker sought a court order to force Estro to hand over company records to shed light on whether it had engaged in trademark infringement, misleading or deceptive conduct and passing off (31 October 2020).  More...

ASIC secures consumer remediation of over $10 million from Allianz for travel insurance
ASIC has secured $10 million in remediation from Allianz Australia Insurance Limited (Allianz) and AWP Australia Pty Ltd for travel insurance potentially mis-sold to consumers through Allianz’s own website and those of its distribution partners. Allianz and AWP have removed the potentially misleading or deceptive statements from their websites and those of their partners (30 October 2020).  More...

ASIC commences proceedings against ACBF Funeral Plans and Youpla Group concerning funeral expenses insurance
ASIC has commenced proceedings in the Federal Court, alleging that ACBF Funeral Plans engaged in misleading and deceptive conduct and made false and misleading representations, in offering, promoting and selling the ACF Plan in contravention of sections 12DA(1) and 12DB(1) of the ASIC Act (29 October 2020).  More...

Productivity Commission inquiry into right to repair
The Morrison Government has released terms of reference for the Productivity Commission’s inquiry into the Right to Repair in Australia. The inquiry will consider a range of issues impacting the Australian repair market, including potential barriers and enablers of greater competition and repair services at a competitive price (29 October 2020).  More... 

Northern Australians call for intervention to control soaring premiums
The ACCC’s ongoing investigation into the availability and affordability of home, contents, and strata insurance in northern Australia suggested that insurers managed their risk exposure by increasing premiums, refusing to cover some properties (29 October 2020). More...

ACCC appeals court’s decision on Employsure Google Ads
The ACCC has lodged an appeal against the Federal Court’s decision to dismiss its case against Employsure, in which the ACCC alleged that Employsure’s Google Ads misrepresented that Employsure was, or was affiliated with, a government agency (29 October 2020).  More...

EZ Smile pays penalty for alleged misleading statements on its website
EZ Smile Pty Ltd has paid a penalty of $12,600 after the ACCC issued an infringement notice for an alleged false or misleading representation made on EZ Smile’s website in relation to the involvement of Australian orthodontists in its teeth straightening services (29 October 2020).  More...

Agrison allegedly misled tractor buyers about warranty and aftersales services
The ACCC has instituted Federal Court proceedings against AA Machinery Pty Ltd (trading as Agrison), alleging it made false or misleading representations about the warranties and after-sales services available to its customers, in breach of the Australian Consumer Law (27 October 2020).  More...

ACCC warns flags dangers of digital domination
The ACCC said its first Digital Platform Services Inquiry interim report showed how the use of online private messaging services had grown significantly during the COVID-19 pandemic and identified competition and consumer issues across digital platforms (26 October 2020).  More...

Practice and regulation

Container stevedoring monitoring report 2019-20
The 2019-20 container stevedoring monitoring report presents information on the financial and operational performance of the monitored container stevedores, as well as observations regarding key developments within the sector (4 November 2020).  More...

Broadband speed claims: Industry guidance
On 21 August 2017, the ACCC published guidance for retail service providers on how to advertise speeds for fixed-line broadband services, including clearly identifying typical peak speeds (29 October 2020).  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.” On 24 April 2020, the reporting date was extended from the first sitting day in October 2020 to 16 April 2021.

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

State of Escape Accessories Pty Limited v Schwartz [2020] FCA 1606
COPYRIGHT – artistic works – whether applicant’s neoprene tote bag is a “work of artistic craftsmanship” within the meaning of s 10(1) of the Copyright Act 1968 (Cth) (Copyright Act) –– conduct would have infringed ss 36, 37 and 38 of Copyright Act if copyright subsisted – innocent infringement defence under s 115(3) of Copyright Act not established – award of additional damages under s 115(4) would not be warranted on facts of case
CONSUMER LAW –  misleading  or  deceptive conduct  and false or  misleading  statements under ss 18(1) and 29(1)(a) of Australian Consumer Law (ACL) – whether respondent’s conduct  misleading  or deceptive due to similarities of appearance of bags – where evidence established respondent’s tote bag mimicked applicant’s neoprene tote bag – where respondent’s mark appeared clearly on bags and in trade channels – where price of product meant consumers would take care to assess product before purchase –  misleading  and deceptive conduct on basis of similarity of appearance not established – respondent admitted to making certain false and  misleading  statements – declaratory relief to be ordered and damages to be assessed – accessorial liability of director under s 236(1) of ACL – whether director “involved in” contravening conduct within the meaning of s 2(1) of ACL – whether director had actual knowledge of the “essential facts constituting the contravention” – director was party to the contravening conduct and knew of the underlying facts pointing to falsity or  misleading  nature of the statements in issue – director liable under s 236(1) of ACL
Competition and Consumer Act 2010 (Cth), sch 2 (Australian Consumer Law) ss 2(1), 18(1), 29, 236
Copyright Act 1968 (Cth) ss 10(1), 14(1)(a), 31(1)(b), 32, 36, 37, 38, 77, 115

Jafari v 23 Developments Pty Ltd & Ors [2020] HCASL 228
By the Court of Appeal's first judgment, the Court of Appeal refused the applicant leave to appeal against the judgment of the primary judge (Elliott J) holding, inter alia, that the applicant had engaged in  misleading  and  deceptive conduct  by representing to the respondents as prospective purchasers of land in Seddon that there would not be "any issues" with respect to contamination of the land. The applicant requires an extension of time, but an extension of time would be futile. There is no reason to doubt the correctness of the Court of Appeal's second judgment. An appeal to this Court would enjoy no prospect of success. 

The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 5) [2020] FCA 1576
CONSUMER LAW – representative proceedings pursuant to Pt IVA Federal Court of Australia Act 1976 (Cth) – whether Merck orders concerning initial trial should be made – whether questions require adjudication of individual claims
PRACTICE AND PROCEDURE – representative proceedings pursuant to Pt IVA Federal Court of Australia Act 1976 (Cth) – whether Merck orders concerning initial trial should be made – whether questions require adjudication of individual claims
Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law ss 54, 54(1), 54(2)(a), 54(3)(b), 54(3)(c), 54(3)(e), 54(7), 271; Federal Court of Australia Act 1976 (Cth) ss 33H(1)(c), 33ZB
Trade Practices Act 1974 (Cth) ss 74D, 74D(1), 74D(2), 74D(3), 74D(3)(c)

Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185
CONSUMER LAW –  misleading  or  deceptive conduct  – where website aggregates a list of hotel offers in response to a consumer search – where multiple offers provided for each hotel listing – where one offer is displayed more favourably as the Top Position Offer – whether the Top Position Offer was the cheapest offer or had some other characteristic which made it more attractive than any other offer – whether the Top Position Offer and a more expensive Red Price or Strike-Through Price positioned above it provided a “like-for-like” comparison – whether text contained in hover-overs and click-through links dispelled the impressions created by the website’s layout and television advertising – whether the role of the payment mechanism between the website and hotel offerors in determining the ranking of offers was adequately disclosed to consumers – whether it was represented that the website provided an impartial, objective and transparent price comparison service
Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 29(1)(i), 34

Fair Work Ombudsman v Austop Natural Therapy and Supplies Pty Ltd & Ors [2020] FCCA 2920
INDUSTRIAL LAW – Admitted contraventions of Fair Work Act 2009 – underpayment by small business of foreign national employee – assessment of penalty – non-exhaustive list of factors relevant to the imposition of a penalty – underpayments nearly entirely paid by respondents –  misleading  and  deceptive conduct  of accountant – general and specific deterrence – totality principle

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