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Inside track: Competition and Consumer Law

13 November 2018

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media 

ACCC action against Captain Cook College for alleged systemic unconscionable conduct
The ACCC has instituted Federal Court proceedings against Productivity Partners Pty Ltd, trading as Captain Cook College, alleging systemic unconscionable conduct in breach of the Australian Consumer Law, designed to maximise profit at the expense of their students (09 November 2018).  More... 

Australian regulator cancels license of AGM Markets
The ASIC announced that it has cancelled the AFS licence of the retail OTC derivative issuer AGM Markets. The cancellation follows an ASIC investigation which demonstrated that AGM’s financial services operations involved core elements of unconscionability and unmanaged conflicts of interest and followed a business model that disregarded key conduct requirements (09 November 2018).  More... 

Murray Goulburn: Gary Helou likely to face fines following ACCC settlement
The ACCC will apply to the Federal Court seeking declarations the Murray Goulburn and Mr Helou breached Australian Consumer Law in 2016. MG's price cuts were swiftly followed by other processors, including Fonterra, which drove many farmers out of the sector, and saw Australia's milk supply plummet (09 November 2018).  More... 

Hearing aid retailers fined $2.5 million for misleading pensioners
The Federal Court has ordered hearing aid retailers Oticon Australia Pty Ltd (Oticon) and Sonic Innovations Pty Ltd (Sonic) to pay penalties totalling $2.5 million for misleading pensioners through newspaper advertisements for hearing aids sold by AudioClinic and HearingLife clinics (01 November 2018).  More...  

Consumer watchdog dismisses Coalition calls to break up fuel companies
The head of Australia’s competition regulator has shrugged off demands to lower fuel excise or break up petrol companies, arguing that consumers shopping around for cheaper petrol is the best response to high prices (31 October 2018).  More...  

Grocery Code review calls for fairer dispute resolution for suppliers
The Australian Government welcomes the release of Professor Graeme Samuel AC's final report on the Review of the Food and Grocery Code of Conduct (the Review). Key recommendations include enhancing the provisions that require signatories to act in good faith towards suppliers (30 October 2018).  More...  

Consumers and small businesses win big with better business reforms in NSW
The key reforms to empower consumers include making businesses clearly tell consumers up front about the potential effects of terms and conditions which could prejudice their interests and making brokers and product comparison businesses come clean on the kickbacks and commissions they receive (26 October 2018).  More... 

Cases

Bank of Queensland Ltd v AIG Australia Ltd [2018] NSWSC 1689
Loss for which defendant insurers are liable arises from multiple “Claims”.
BANKING AND FINANCE – banker and customer relationship – money market deposit accounts – deposits recommended by financial planner – financial planner alleged to have engaged in Ponzi Scheme – monies in accounts misappropriated – monies allegedly withdrawn without mandate – monies allegedly withdrawn with knowledge of fraud.
INSURANCE – liability insurance – aggregation clause – proper construction – how many “Claims” made in representative proceedings – whether loss for which insurers are liable arises from one “Claim” or multiple “Claims” – unifying factor – how many “Wrongful Acts” – whether there was a “series of related” Wrongful Acts – whether the wrongful acts “unrelated” – whether plaintiff’s claim.
Clause 2.20 provided: 2.20 Wrongful Act means any (i) act or error or breach of duty or omission or conduct (including misleading or deceptive conduct ) committed or attempted or allegedly committed or attempted by or of the Insured.  

First Solar (Australia) Pty Ltd, in the matter of Lyon Infrastructure Investments Pty Ltd v Lyon Infrastructure Investments Pty Ltd [2018] FCA 1666
CORPORATIONS – whether pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) the proceeding against the second and third defendants should be stayed pending determination of the arbitration between the plaintiff and the first defendant – application allowed.
The commercial relationship between Lyon and First Solar embodied in the Agreements was entered into on the basis that: (c) First Solar would ensure that its solar panels were competitive in the Australian renewable energy market, in terms of their price, performance, and the terms on which they were supplied - alleged misleading or deceptive conduct by First Solar pursuant to s 18 of the Australian Consumer Law being Sch 2 to the Consumer and Competition Act 2010 (Cth). 

Ikon Communications Pty Ltd v Advangen International Pty Ltd [2018] NSWSC 1650
CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Predictions – Whether the impugned representations were misleading or deceptive – Remedies – Measure of damages – Cross-defendant’s onus to prove benefits to cross-claimant caused by cross-defendant’s unlawful conduct.
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether the claimed damages were expenditure incurred in the procurement or performance of the contract.
EVIDENCE – Opinion evidence – Exceptions – Expert opinion – Whether an opinion is wholly or substantially based on a witness’ specialised knowledge.
Australian Consumer Law; Therapeutic Goods Advertising Code 2015 (Cth)

Aurizon Network Pty Ltd v Queensland Competition Authority & Ors [2018] QSC 246
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – SUPERVISION – OTHER BODIES – where applicants submit that chair of first respondent did not disclose alleged conflict of interest in accordance with Queensland Competition Authority Act 1997 (Qld) s 219 – whether chair of first respondent had a direct or indirect interest in an issue being considered by the authority – whether contravention of s 219. 

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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