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Inside track: Competition & Consumer

13 October 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

iSelect to pay $8.5 million for misleading consumers comparing energy plans
The Federal Court has ordered iSelect Limited to pay $8.5 million in penalties for making false or misleading representations about its electricity comparison service. iSelect’s commercial arrangements with partner electricity retailers restricted the number of electricity plans those retailers could upload onto the iSelect systems, and therefore the recommended plans were not necessarily the most suitable or competitive (08 October 2020).  More...

NAB confesses to faulty disclosures, misleading and deceptive conduct
NAB has confessed to breaking the law thousands of times and has exposed itself to financial penalty of more than $100 million as the corporate regulator’s landmark fees for no service case against the bank moves a court date. The bank has admitted to thousands of instances of deceptive conduct and hundreds of breaches of the Corporations Act, however the two parties are unlikely to settle (06 October 2020).  More...

Expedia embroiled in Allianz Australia court case over alleged misleading travel insurance sales
The ASIC commenced civil penalty proceedings in the Federal Court against Allianz and its related party AWP. The conduct concerns alleged breaches of the Corporations Act and the ASIC Act relating to misleading and deceptive conduct and general licence obligations, and involves three websites owned by Expedia: www.expedia.com.au, www.lastminute.com.au and www.wotif.com.au (06 October 2020). More...

ASIC starts court action against Allianz over travel sales
The Australian Securities and Investments Commission (ASIC) has started civil penalty proceedings in the Federal Court against Allianz Australia and AWP Australia, alleging a misleading sale of travel insurance through three websites run by Expedia. ASIC says the conduct concerns alleged breaches of the Corporations Act and the ASIC Act relating to misleading and deceptive conduct and general licence obligations (05 October 2020).  More...

'The most hated regulator in Australia': Rod Sims warns business he's still watching
Australia’s competition chief, Rod Sims, has warned big companies not to take advantage of the coronavirus crisis to nobble their competitors and set themselves up as monopolies. Stopping Australia emerging from the pandemic as an economy where even more power is concentrated in the hands of a few players is just one entry on a long to-do list kept by Sims (04 October 2020).  More...

Controversial ticketing platform Viagogo has copped a $7 million fine for misleading Australians on ticket scarcity
Having frustrated plenty of Australians over the years, justice may have been after the federal court made Viagogo pay for misleading Australia on fees and ticket availability. The ticket reseller was fined $7 million, settling a long-running case brought against it by competition watchdog the ACCC over its business practices (02 October 2020).  More...

ACCC takes Australian voice MTAS down to 1.19 cents from 2021
The Australian Competition and Consumer Commission (ACCC) announced its final decision on Friday to drop the price of MTAS for voice services from AU$0.017 per minute to AU$0.0119 per minute from January 1. If unregulated, it would allow telcos to charge higher prices for incoming calls and text messages from other providers (02 October 2020).  More...

McDonald's moves to supersize lawsuit against Hungry Jack's
McDonald's Australia is threatening to supersize its trademarks lawsuit against Hungry Jack's after its rival launched a television campaign claiming the Big Jack burger is "clearly bigger" than "some American burger". And a potential claim for misleading or deceptive conduct to the trademarks infringement case (02 October 2020).  More...

Half of Australian industries are dominated by a 'big four' — and it's likely to get worse
For decades, our industries and sectors have become more concentrated and less competitive. Now there are fears the stresses of coronavirus will lead Australia into a new era of monopoly power (02 October 2020).  More...

Freedom Foods (ASX:FNP) takes Almond Breeze manufacturer to court
Freedom Foods (FNP) has commenced legal proceedings against Almond Breeze manufacture Blue Diamond Growers over a disputed licencing agreement. Freedom Foods also claims that Blue Diamond has engaged in unconscionable, misleading and deceptive conduct contrary to the current Australian consumer laws.  More...

Federal Court dismisses case against Employsure
The Federal Court has dismissed the ACCC’s consumer law case against workplace relations advisor Employsure Pty Ltd, finding that it did not engage in misleading marketing or behave unconscionably in dealings with small businesses. The Court found that the ads were not misleading and considered that a reasonable business owner would not infer an affiliation with government existed (02 October 2020).   More...

Live Life Alarms pays penalties for allegedly misleading statements on its website
Personal mobile alarm company Flight Plan Digital Pty Ltd, trading as Live Life Alarms, has paid penalties of $25,200 after the ACCC issued two infringement notices for alleged false or misleading representations made on its website in relation to a testimonial and its ‘14 day money back guarantee’ (30 September 2020).  More...

Full Court dismisses ACCC appeal over Woolworths’ ‘compostable’ claims
The Full Federal Court has dismissed an ACCC appeal against a Federal Court judgment in relation to environmental claims made by Woolworths about their ‘W Select eco’ picnic products labelled ‘biodegradable and compostable’ were false and misleading  (29 September 2020).   More...

Cases

Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423
CONSUMER LAW – misleading or deceptive conduct – false or misleading representations relating to price – part-price representation – remedies – declarations – pecuniary penalties – principles relevant to imposition of a penalty – injunctions – principles relevant to imposition of an injunction – publication orders – compliance program orders. Competition and Consumer Act 2010 (Cth) s 137H(3); Competition and Consumer Act 2010 (Cth) Schedule 2, ss 18, 29, 34, 48, 224, 232, 246.  

Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409
CONSUMER LAW – alleged contraventions of ss 18, 29(1)(b), 29(1)(h) and 34 of the  Australian Consumer Law  (ACL) – whether Employsure, a workplace relations consultancy, conveyed contravening representations in certain Google Ads that it was affiliated with and/or endorsed by a government agency such as the Fair Work Ombudsman or Fair Work Commission – whether Employsure’s use of keywords and the design of its Google Ads amounted to contravening conduct – whether Employsure’s representations that it provided a “free advice” telephone helpline amounted to contravening conduct – no contravention established
CONSUMER LAW – unconscionable conduct – whether Employsure engaged in conduct contrary to s 21 of the ACL with respect to its dealings with three small businesses – unconscionability claims rejected
CONSUMER LAW – unfair contract terms – whether certain clauses in Employsure’s standard form small business contract were unfair contract terms in contravention of ss 23 and 24 of the ACL – no unfair contract terms established
EVIDENCE – whether Jones v Dunkel principle triggered by Employsure’s failure to call witnesses – whether particular evidence should be accepted or inferences of fact drawn – Jones v Dunkel not applicable

Australian Competition and Consumer Commission v Woolworths Group Limited (formerly called Woolworths Limited) [2020] FCAFC 162
CONSUMER LAW – whether statements featured on the labels affixed to the packaging of disposable crockery and cutlery products that those products were “Biodegradable and Compostable” conveyed representations that those products were capable of biodegrading and composting because of the nature of the materials of which they were composed – whether, in all the circumstances and in the context in which such statements were made, either in the alternative or in addition, they conveyed representations as to future matters, namely, that those products would biodegrade and compost within a reasonable time if they are disposed of and treated in accordance with established methods and processes
Australian Consumer Law, ss 4, 18, 29 and 33; Trade Practices Act 1974 (Cth), s 51A; Explanatory Memorandum, Trade Practices Revision Bill 1986 (Cth)

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