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Inside track: Competition & Consumer

13 April 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Full Court dismisses Volkswagen $125m penalty appeal
The Full Federal Court dismissed an appeal by Volkswagen AG against the penalties handed down earlier for making false representations about compliance with Australian diesel emissions standards. In dismissing the appeal, the Full Court upheld the $125 million penalty imposed by the Federal Court, and held that the $125 million penalty ‘was not excessive, let alone manifestly excessive’ (09 April 2021).  More...

CBA fined $7m for overcharging interest
The Federal Court of Australia has ordered the Commonwealth Bank of Australia (CBA) to pay a $7-million penalty after the court had previously declared that the lender made false or misleading representations and engaged in misleading and deceptive conduct (08 April 2021).  More...

Dairy class action turns sour for AIG
The Federal Court has found against AIG after the insurer argued the company securities part of its policy didn’t cover class action claims related to the Murray Goulburn dairy group. Investors involved in the actions alleged breaches of continuous disclosure or misleading or deceptive conduct provisions over forecasts for the farmgate milk price and profits (06 April 2021).  More...

ASIC sues CommBank for allegedly overcharging customers
ASIC has taken Commonwealth Bank to the Federal Court, alleging it charged customers monthly access fees when it was not entitled to do so. The watchdog claims the allegations amount to misleading or deceptive conduct, and that the bank contravened its obligation as an Australian financial services licensee. ASIC also alleges that CBA failed to provide financial services efficiently, honestly and fairly (01 April 2021).  More...

The half-price airfares deal
About 46,000 half-price fares will be offered mostly with Qantas, Virgin and Jetstar. The ACCC will be monitoring the prices to make sure there's no gouging James Gilchrist Stewart from RMIT thinks it's unlikely they'll inflate their prices, however, with the end of JobKeeper coming at the same time as these cheap airfares, there's a possibility accommodation providers and tourism operators may increase their pricing," he says (01 April 2021).  More...

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. View the Issues Paper, Digital Platform Services Inquiry – September 2021 Report on market dynamics and consumer choice screens in search services and web browsers (March 2021).  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) 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...


Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338
PRIVATE INTERNATIONAL LAW – application for permanent stay of proceedings alleging contraventions of Competition and Consumer Act 2010 (Cth) (‘CCA’) Pt IV, Australian Consumer Law (‘ACL’) s 21 – where exclusive jurisdiction clause requires litigation relating to app developer agreement to occur in Northern District of California – where First Applicant has commenced proceedings against First Respondent in Northern District of California alleging contraventions of United States and Californian competition law – whether Australian proceedings ‘relate to’ agreement
PRIVATE INTERNATIONAL LAW – discretionary non-exercise of jurisdiction – whether ‘strong reasons’ adduced against grant of stay, considering Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418 – whether CCA Pt IV, ACL s 21 mandatory laws of the forum – where parties agree courts in Northern District of California have jurisdiction to hear claims under CCA and ACL – whether court in Northern District of California would decline to exercise jurisdiction on discretionary grounds – whether Akai places onus on party arguing for stay to prove case will be heard by foreign court
COMPETITION – where allegation that CCA Pt IV is contravened by requirements that app developers only distribute apps through Respondents’ app store and purchases of in-app content use only Respondent’s payment processing system – whether CCA Pt IV cases should be determined by foreign courts
CONSUMER LAW – where exclusive jurisdiction clause in standard form contract between First Respondent and app developers – whether clause contravenes ACL s 21
Carriage of Goods by Sea Act 1991 (Cth) s 11(2); Competition and Consumer Act 2010 (Cth) Pt IV, ss 2, 5, 45, 46, 47, 80, 83, 86, Sch 2 ss 21, 22(1), 23
Insurance Contracts Act 1984 (Cth); Sherman Act 15 USC §§1-2
Cartwright Act Cal Bus & Prof Code §§16700 et seq; Unfair Competition Law Cal Bus & Prof Code §§17200 et seq.

Australian Competition and Consumer Commission v Superfone Pty Ltd [2021] FCA 278
CONSUMER LAW – contraventions of ss 18, 29(1)(h), (g) and (m), 76, 77, 78, 79 and 86 of the Australian Consumer Law (ACL) – principles relevant to injunctive relief, imposition of a pecuniary penalty, non-party consumer redress orders and publication orders – whether appropriate to make non-party consumer redress order under s 239 of ACL – not necessary to individually identify which persons are non-party consumers or the nature of loss or damage suffered – injunctive relief, pecuniary penalty, non-party consumer redress orders and publication orders made
Competition and Consumer Act 2010 (Cth); Federal Court of Australia Act 1976 (Cth)
Trade Practices Act 1974 (Cth); Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth).

Murray Goulburn Co-operative Co. Limited v AIG Australia Limited [2021] FCA 288
INSURANCE – indemnity policy for liability concerning securities class action exposure – side C cover – claim for indemnity – settlement sums paid to settle two class actions – alleged contraventions of continuous disclosure provisions – construction of policy – meaning of “securities” – meaning of “securities claim” – units in a listed unit trust – equity interest – relevance of meaning of “securities” under s 92 of the Corporations Act 2001 (Cth) – exclusions – scope of endorsements – whether claims in class actions arose out of product disclosure statement concerning the MG Unit Trust – acquisition of units in the MG Unit Trust on secondary market rather than primary market – causal nexus of class action claims to the product disclosure statement – meaning and scope of “arising out of, based upon, attributable to” – “professional services” exclusion meaning and scope – indemnification available under side C cover.

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