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Inside track: Competition & Consumer Law

12 November 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

In the media

ACCC appeals court decision on TPG prepayments
The ACCC has appealed from the Federal Court’s decision to dismiss its case against TPG Internet Pty Ltd (TPG) for alleged false or misleading representations it made about ‘pre-payments’ customers had to make on its pre-paid internet, home telephone and mobile plans. The trial judge did not accept the ACCC’s argument that the operation of TPG’s ‘prepayment’ arrangements was not adequately disclosed to consumers (08 November 2019).   More... 

Property Express Pty Ltd and Dean Anthony Johnson - Court outcome
Estate agency Property Express Pty Ltd (ACN: 149 482 440) and one of its former directors have lost their licences, after misleading clients about property prices. Mr Johnson provided estimated sale prices on properties, which vendors accepted. He then advertised the properties for a lower price or range without the vendors’ knowledge or agreement (06 November 2019).  More... 

Liberal admits election day signs were designed to create false impression
Former Liberal Party state director Simon Frost admits the party's signs were designed to look like those of the Australian Electoral Commission. The AEC previously denied the posters were likely to mislead or deceive voters into thinking they were official instructions from the commission (06 November 2019).  More... 

Former BlueScope executive faces court on criminal charges
Jason Ellis, 48, is charged with two counts of inciting the obstruction of a Commonwealth official over a probe into alleged cartel conduct by BlueScope (05 November 2019).  More... 

Dawkins' legal threat over false claims he misled ASX
John Dawkins is threatening to sue the Australian Securities and Investments Commission after the regulator mistakenly claimed the former federal treasurer misled the Australian Securities Exchange (04 November 2019).  More... 

Taco Bell and Taco Bill square off in Mexican standoff
Mexican chain Taco Bill has shot off a legal challenge to Taco Bell's expansion plans, in the latest round of a long-running feud between the two restaurants (04 November 2019).  More... 

ZeniMax to refund consumers for the Fallout 76 game
The ACCC has accepted a court-enforceable undertaking from three related video gaming companies after they acknowledged they were likely to have misled consumers about their consumer guarantee rights in relation to the online action game Fallout 76 (01 November 2019).  More... 

Furniture chains pay penalties for making alleged misleading “was/now” price claims
Four furniture retailers have each paid a penalty of $12,600 after the ACCC issued them with an infringement notice. The ACCC had reasonable grounds to believe each retailer had made false or misleading representations by claiming that consumers would save money if they purchased certain furniture items when this was not the case (01 November 2019).   More... 

Mazda in court for alleged unconscionable conduct and false or misleading representations
The ACCC has instituted proceedings in the Federal Court against Mazda Australia Pty Ltd (Mazda) alleging that Mazda engaged in unconscionable conduct and made false or misleading representations in its dealings with consumers who bought one of seven new Mazda vehicles. In short, our case is that Mazda gave these consumers the ‘run around’ while denying their consumer guarantee rights (31 October 2019).  More... 

$4.165 million in penalties ordered against training college Unique
The Federal Court has ordered $4.165 million in penalties against Unique International College Pty Ltd (Unique), for engaging in unconscionable conduct against five consumers, making false or misleading representations to four of these consumers, and breaching the unsolicited consumer agreements provisions in relation to six consumers (31 October 2019).   More... 

Google sued in world first by the ACCC over alleged misuse of personal data
The ACCC is suing Google over serious allegations that it has been misleading its account holders and misusing personal data it collects (29 October 2019).   More... 

Practice and Regulation

New Gift Card Laws
The Australian Consumer Law (ACL) has been amended to provide protections for gift card consumers across Australia. With some exemptions, the ACL will: require minimum three year expiry periods for gift cards; require gift cards to display expiry dates; and ban most post purchase fees on gift cards. These changes apply to gift cards  apply from 1 November 2019. Further information can be found in the Explanatory Memorandum to the Treasury Laws Amendment (Gift Cards) Act 2018 and the Explanatory Statement to the Treasury Laws Amendment (Gift Card) Regulations 2018.

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... 


Safer Storage Systems v Dexion (Australia) [2019] FCA 1784
PRACTICE AND PROCEDURE  — application for interlocutory injunction  — restraint of trade  — where interlocutory injunction sought to restrain conduct alleged to be in contravention restrictive covenants in supply agreement  — serious question to be tried  — whether cross-respondents’ business activities contravened restrictive covenants  — whether restrictive covenants in supply agreement are enforceable  — whether cross-claimant established prima facie case of trade mark infringement  — where balance of convenience favours refusal of application – application refused
CONTRACT  — restraint of trade  — where supplier and distributor entered into supply agreement  — whether supplier entitled to interlocutory injunction to restrain conduct of distributor’s business after termination of supply agreement – possible contravention of the Competition and Consumer Act 2010 (Cth)
INTELLECTUAL PROPERTY  — trade mark infringement  — whether cross-respondent used a mark belonging to the cross-claimant
Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) s 18
Competition and Consumer Act 2010 (Cth) ss 4F, 4L, 45AD

Australian Competition and Consumer Commission v Unique International College Pty Ltd (Imposition of Penalty) [2019] FCA 1773
CONSUMER LAW  —  pecuniary penalties  —  respondent found to have contravened Australian Consumer Law ss 21, 29, 76, 78 and 79 in process of enrolling consumers in online courses with offer of free laptop on enrolment  —  unconscionable conduct  —  unsolicited consumer agreements  —  where system of conduct findings overturned on appeal but findings in relation to six individual consumers upheld – where consumers all from remote communities and most of low literacy, technological capability or had conditions affecting learning capability  —  consideration of relevant principles
Competition and Consumer Act 2010 (Cth) Sch 2 ss 21, 29, 76, 78, 79, 224

National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 4) [2019] NSWSC 1477
REAL PROPERTY — farm debt — possession of land — default under farm mortgage — Farm Debt Mediation Act —
MEDIATION — whether s 11 certificate valid — whether satisfactory mediation — construction of s 4(1A) — was mediation in good faith — did mediator provide summary of mediation at end of mediation — was notice provided by bank that it had agreed to a mediation — was bank required to mediate with farmer in personal capacity and in capacity as trustee – whether subsequent mediation invalid —ENFORCEMENT ACTION — whether proceedings void pursuant to s 6 of the Farm Debt Mediation Act – whether enforcement action prior to mediation — scope of enforcement action under the Farm Debt Mediation Act — was notice of cancellation of overdraft a farm mortgage — whether bank entitled to withdraw reliance on default notices — whether bank engaged in continuation of enforcement action
TRUST LAW — was property held by trust — is trust liable to pay the loans rather than individual — whether joint trustee — whether individual validly resigned as trustee — whether individual indemnified under trust deed —
SERVICE — was cancellation notice required to be served — was cancellation notice served — was default notice served —
CONSUMER LAW — misleading or deceptive conduct — whether representation made by bank that facilities would be extended — ADMINISTRATIVE LAW — judicial review — error of law — procedural fairness — application for extension of time to bring proceedings  application dismissed

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

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Ian Robertson AO

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