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Inside track: Competition and Consumer Law

11 June 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Proposal for more transparency on music performing rights licensing
The ACCC is calling for feedback on a proposal in the licensing arrangements, to remove any risk that they may breach competition provisions of the Competition and Consumer Act. APRA already has a near-monopoly, and the exclusivity provisions it has with artists makes its position even stronger. This raises a risk of higher prices for businesses that play music, and other inefficiencies or restrictions for APRA members (05 June 209).  More...

Class action lawsuits continue to be launched at industry
A major super fund is the latest in the financial industry to be slapped with a class action lawsuit as a major bank looks set to settle one of theirs. The class action is the latest in a series of class actions with Maurice Blackburn having recently been awarded the case against AMP for alleged misleading and deceptive conduct, and a cartel class action being launched against five global investment banks including Citibank and JP Morgan (05 June 2019).  More...

ASIC spotlight on Sterling First firms over ‘serious allegations’ of misconduct before collapse
A WA property investment and management group that went under last month was being investigated by the corporate regulator and facing “serious allegations” of misconduct. The allegations include misleading or deceptive conduct, unconscionable conduct and breaches of conduct (05 June 2019).  More...

ASIC permanently bans adviser over inappropriate SMSF advice
ASIC has permanently banned Perth-based adviser Phillip Emidio Bruni from providing financial services after surveillance it undertook found that Mr Bruni had been dishonest and engaged in misleading or deceptive conduct and failed to act in the best interests of clients when advising them on SMSFs and property (04 June 2019).  More...

Insider trading volumes on the increase, warns ASIC
ASIC commissioner Cathie Armour used a speech at the Australian Regulatory Summit to sound the alarm over some unusual market activity detected by ASIC between 2016-2019. The Commissioner  issued a warning to cryptocurrency marketers after  concerning examples seen of offers for these assets that appear to involve misleading or deceptive conduct, or that are promoted in a way that does not comply with the regulatory framework  (04 June 2019).  More...

More transparency needed in wine grape sector
Harmful market practices are restricting competition in some Australian wine grape growing regions and limiting the potential for growth of Australia’s wine industry, according to an interim report released by the ACCC (03 June 2019).  More...

Jetstar to pay $1.95 million for false or misleading claims on refunds
The Court found that between April 2017 and March 2018, Jetstar made false or misleading statements on its website that some fares were not refundable, and that consumers could only get a refund if they purchased a more expensive fare (30 May 2019).  More...

Garuda ordered to pay $19 million for price fixing
The Federal Court has ordered Garuda to pay penalties of $19 million for price fixing in relation to fees and surcharges for air freight services. The penalty ruling comes almost 10 years after the matter was first filed in the Federal Court (30 May 2019).   More...

Allegations Sony breached consumer law for PlayStation games
The ACCC has instituted proceedings in the Federal Court against Sony Interactive Entertainment Network Europe Limited (Sony Europe) for making false or misleading representations to Australian consumers on its website and in dealings with Australian customers of its PlayStation online store (29 May 2019).  More...

Hunting 'the Mafia': Big investment banks face Australian cartel claim
Five of the biggest investment banks in the world, including UBS, Barclays and Citibank, have been accused in an Australian class action lawsuit of operating a foreign exchange cartel using secret chat rooms titled "the Cartel", "the Bandits Club" and "the Mafia" (27 May 2019).  More...

Practice and Regulation

ACCC Consultation: Wine grape market study - June interim report.
The ACCC is seeking feedback on the interim report by 28 June 2019 and expects to release a final report in September 2019 (03 June 2019).  More...

Cases

Australian Securities and Investments Commission v Vocation Limited (In Liquidation) [2019] FCA 807
CORPORATIONS – continuous disclosure obligations – ASX Listing Rule 3.1 – s 674(2) of the Corporations Act 2001 (Cth) (Act)
CORPORATIONS – whether ASX announcement made by company relating to funding contracts and withholding of payments was misleading or deceptive or likely to mislead or deceive – whether company contravened s 1041H by making such announcement
CORPORATIONS – whether completed due diligence questionnaire (DDQ) provided by company to proposed underwriter of proposed equity capital raising was misleading or deceptive or likely to mislead or deceive – whether company contravened s 1041H of the Act by providing DDQ to proposed underwriter
Acts Interpretation Act 1901 (Cth) s 2(2), 36
Australian Consumer Law 2010 (Cth) s 18
Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth)
Corporations Act 2001 (Cth) ss 180, 674, 676, 677, 708, 708A, 1041H, 1317S, 1318
Trade Practices Act 1974 (Cth) ss 52, 75

Lucas v Zomay Holdings Pty Ltd [2019] FCA 830
CONTRACTS – applicant seeks specific performance of contract – “fourth category” of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 – allegation of repudiation
CONSUMER LAW – misleading and deceptive conduct
Competition and Consumer Act 2010 (Cth), sch 2 (‘Australian Consumer Law’), s 18
Corporations Act 2001 (Cth), s 440D

Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2019] FCA 797
CONSUMER LAW – admitted contraventions of ss 18 and 29(1)(m), Australian Consumer Law (ACL) – misleading or deceptive representations made on respondent airline’s website – where representations in booking flow that fares were non-refundable when there may be an entitlement to a refund under statutory consumer guarantees – where representation in conditions of carriage that flight services were not subject to statutory guarantees – where representations in conditions liable to mislead consumers as to remedies available for non-compliance with consumer guarantees – consideration of principles for determining whether agreed penalty and other agreed orders for non-compliance with the ACL appropriate – where public importance in sending a strong message of deterrence to highlight importance of ensuring accuracy in making representations on consumer rights – where no intention to mislead – where high degree of co-operation by the respondents with the ACCC – where appropriate to impose agreed penalties and grant declaratory relief in terms agreed
Australian Consumer Law ss 18, 29(1)(m); Competition and Consumer Act 2010 (Cth); Federal Court of Australia Act 1976 (Cth)

Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (Remedies) [2019] FCA 786
COMPETITION – collusive arrangement – exclusive dealing – respondent found to have contravened s 45 of the Trade Practices Act 1974 (Cth) – enforcement and remedies – application for declarations, injunctions and pecuniary penalties – consideration of relevant principles
PUBLIC INTERNATIONAL LAW – act of state doctrine – distinction between foreign state immunity and act of state doctrine – whether commercial acts of respondent airline had sovereign aspect to them
PUBLIC INTERNATIONAL LAW – where respondent submitted injunctions and pecuniary penalties would be contrary to customary international law – where respondent argued customary international law relevant to Court’s discretion and power to grant remedies – where respondent argued relevance of principles of ‘accommodation, mutuality and proportionality’
STATUTORY INTERPRETATION – factors relevant to imposition of pecuniary penalty – loss or damage flowing from contravention of competition law – consideration of deeming provision in s 45A of the Trade Practices Act 1974 (Cth) – whether s 45A can inform assessment of loss or damage under s 76 or limited to establishing breach of s 45 – consideration of Federal Commissioner of Taxation v Comber [1986] FCA 92; 10 FCR 88 and Re Levy; Ex parte Walton (1881) 17 Ch D 746

Contacts:
Melbourne
Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
E: howard.rapke@holdingredlich.com

Sydney
Ian Robertson, National Managing Partner
T: +61 2 8083 0401
E: ian.robertson@holdingredlich.com

Brisbane
Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613
E: paul.venus@holdingredlich.com

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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