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Inside track: Competition & Consumer

13 October 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

NZ's a2 Milk faces lawsuit over allegations of providing misleading forecasts
Australian law firm Slater and Gordon has filed a class action lawsuit against the dairy firm on behalf of investors who bought its shares over a nine-month period when it issued multiple earnings downgrades. The class action alleges that a2 Milk engaged in misleading or deceptive conduct in breach of the Corporations Act, and also breached continuous disclosure rules in posting four downgrades (06 October 2021).  More...

The class acPower, money, family, politics: The Turnbull lawsuit
Alex Turnbull is suing the chief executive of a Sydney investment firm for $12 million over allegations of misleading and deceptive conduct. But the case has raised wider questions about the strength of Australia’s political disclosure laws (03 October 2021).  More...

Honda ordered to show documents
If the discovery documents show that Honda Australia had commenced planning such fundamental changes to its network business model and did not disclose these changes before dealers signed their 2018 agreements, it has the potential to open the way for Astoria and Tynan to move forward to seek damages in the event a court finds that they suffered from misleading or deceptive conduct and unconscionable conduct (03 October 2021).  More...

Dairy Farmers Milk Co-operative pays penalty for alleged Dairy Code breach
The Dairy Farmers Milk Co-operative Limited has paid a penalty of $11,100 after the ACCC issued it with one infringement notice for allegedly failing to comply with its publishing obligations under the Dairy Code. The Code was introduced to improve price transparency in the dairy industry, so it is essential that processors and co-ops make their milk supply agreements publicly available by the 2.00pm deadline on 1 June (01 October 2021).  More...

Extended LNG netback price series will improve price transparency
The ACCC will publish additional and more relevant information about pricing in the east coast gas market to help improve the negotiating power of commercial and industrial gas users seeking longer-term supply contracts. The ACCC’s LNG netback price series helps to reduce bargaining power imbalances in the gas market by giving C&I users the same information that gas producers use when deciding what prices to offer to the domestic gas market (30 September 2021).  More...

Google’s dominance in ad tech supply chain harms businesses and consumers
An ACCC inquiry into the advertising technology (ad tech) sector has identified significant competition concerns and likely harms to publishers, advertisers and, ultimately, consumers. The report finds that Google has used its position to preference its own services and shield them from competition (28 September 2021).  More...

Practice and Regulation

Digital advertising services inquiry - final report
ACCC: 28 September 2021
A landmark report into the notoriously opaque and concentrated advertising technology (ad tech) supply chain was released by the ACCC, along with a warning it is now considering legal action against market behemoth Google.
The report found ad tech service providers – which connect online publishers’ advertising inventory with advertisers – can charge higher fees because of weak competition, which harms businesses and consumers.

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 18 March 2021 the Senate agreed: That the resolution of appointment of the Select Committee on Financial Technology and Regulatory Technology be amended as follows: That the committee present its final report on or before 30 October 2021

Right to Repair - A final report is being prepared
The release of the final report by the Government is the final step in the process on the inquiry into consumers’ ability to repair faulty goods and to access repair services at a competitive price. Final submissions were due by 23 July 2021 and Final report to government by 29 October 2021.  More...

Cases

Australian Competition and Consumer Commission v Google LLC [2021] FCA 1172
PRACTICE AND PROCEDURE – application for discovery by categories pursuant to rr 20.13 and 20.15 of the Federal Court Rules 2011 (Cth) (the Rules) – in the alternative, application for interrogatories pursuant to r 21.01(1) and 21.04(1)(c) of the Rules – where allegation in the primary proceeding is of misleading and deceptive conduct , and/or the making of false or misleading representations, in contravention of ss 18, 34, 29(1)(g), and 29(1)(m) of the Australian Consumer Law
Competition and Consumer Act 2010 (Cth) s 155; Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) ss 18, 34, 29(1)

Australian Competition and Consumer Commission v BlueScope Steel Limited (No 4) [2021] FCA 1162
PRACTICE AND PROCEDURE – application to set aside notice to produce served in the fourth week of trial –notice set aside on the related bases that it is an abuse of process, oppressive, the documents sought lack apparent relevance and the notice is contrary to the overarching obligations in s 37M of the Federal Court of Australia Act 1976 (Cth)

Lawton Pty Ltd v FHMC Pty Ltd [2021] FCA 1165
TORT – whether respondent’s continued use of a business name would constitute tort of passing off – whether respondent’s continued use of a business name would amount to misleading or deceptive conduct under ss 18 and 20 of the Australian Consumer Law, Sch 2 of the Competition and Consumer Act 2010 (Cth)
PRACTICE AND PROCEDURE – interlocutory application seeking an injunction to permanently restrain respondent from continuing to use a business name – relevant principles regarding interlocutory injunctions – whether applicant has established a prima facie case for an interlocutory injunction – whether balance of convenience favours grant of an interlocutory injunction – where balance of convenience in favour of granting injunction – interlocutory injunction granted
CONTRACT – whether there was an oral contract between parties regarding use of a business name
Competition and Consumer Act 2010 (Cth), Sch 2

Brighton Automotive Holdings Pty Ltd & Ors v Honda Australia Pty Ltd & Anor [2021] VSC 619
PRACTICE AND PROCEDURE – preliminary discovery – whether reasonable grounds to believe that plaintiffs may have right to obtain relief against prospective defendant – preliminary discovery granted – Supreme Court (General Civil Procedure) Rules 2015, r 32.05 – Pandolfo v Finadri [2018] VSC 211 – Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391 – Bougainville Copper Ltd v RTG Mining Inc & Anor [2021] VSC 231.
Mr Stents deposes that he believes the Applicants may have the right to obtain relief against the First Respondent pursuant to s 236 or s 237 of the Australian Consumer Law (ACL) in respect of misleading or deceptive conduct in contravention of s 18 of the ACL and/or unconscionable conduct in contravention of s 21 of the ACL (‘Putative Claims’).

Legislation

Commonwealth

Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2021
05/10/2021 - This instrument amends the Competition and Consumer (Consumer Data Right) Rules 2020 to facilitate greater participation in the Consumer Data Right (CDR) regime by participants and consumers, provide greater control and choice to consumers in sharing their data, promote innovation of CDR offerings including intermediary services, and enable services to be more effectively and efficiently provided to customers.

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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