Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

Inside track: Competition & Consumer

15 September 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Federal Court Imposes A$57.5m Penalty Against NAB Units
NULIS Nominees and MLC Nominees admitted to misleading or deceptive conduct, false or misleading representations, and breaches of the ASIC Act and Corporations Act. Australia’s Federal Court has imposed a penalty of AUD 57.5 million (USD 42 million) against National Australia Bank (NAB) units NULIS Nominees and MLC Nominees for charging fees for services not provided to hundreds of thousands of superannuation customers (14 September 2020).  More...

Rio Tinto boss and top executives step down following destruction of Aboriginal Juukan Gorge rock shelters
A parliamentary inquiry is investigating the sequence of events leading up to the caves' destruction, Rio's decision-making process and oversight by the West Australian government. The committee wants to question Rio's outgoing executives on their previous appearance at the inquiry, after Mr Entsch raised concerns that misleading evidence had been given (12 September 2020).  More...

Mobile apps market under scrutiny
The ACCC will be examining the experiences of Australian consumers, developers, suppliers and others in a new report scrutinising mobile app stores. Issues to be examined include the use and sharing of data by apps, the extent of competition between Google and Apple’s app stores, and whether more pricing transparency is needed in Australia’s mobile apps market (08 September 2020).  More...

ASIC bans crypto scammer
ASIC has banned a former national representative of a cryptocurrency investment scheme from financial services for seven years, after it was found he engaged in misleading or deceptive conduct (04 September 2020).  More...

Dozens of Australian companies fined for trying to unlawfully profit from Covid crisis
Australia’s health regulator has issued more than $800,000 in fines for misleading advertising or illegally importing health products (06 September 2020).  More...

Competition agencies to coordinate on cross-border investigations
The Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities (MMAC), was signed virtually by the US Department of Justice, US Federal Trade Commission, the UK Competition and Markets Authority, the New Zealand Commerce Commission, the Competition Bureau Canada and the ACCC effective from on 2 September 2020 (03 September 2020).  More...

Crown board's full-page advertisement 'misled' stock exchange
The board of Crown Resorts misled investors in a release to the market and newspaper advertisement last year that claimed its most infamous high-roller gambling partner, Suncity, was controlled by a regulated Hong Kong firm (03 September 2020).  More...

ACCC issues statement on Facebook
ACCC states Facebook’s threat to prevent any sharing of news on its services in Australia is ill-timed and misconceived. The draft media bargaining code aims to ensure Australian news businesses, including independent, community and regional media, can get a seat at the table for fair negotiations with Facebook and Google (01 September 2020).  More...

Ex BlueScope general manager pleads guilty to obstructing cartel investigation
Former general manager of sales and marketing at BlueScope Steel Limited, Jason Ellis, has entered a guilty plea to ‘one charge of inciting the obstruction of Commonwealth public officials in the performance of their functions’ (01 September 2020).  More...

Cases

Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306
CORPORATIONS – admitted contraventions of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) related to the charging and deductions of fees and representations about the right to charge fees from members of superannuation funds – imposition of penalties pursuant to s 12GBA of the ASIC Act – where quantum of penalties is contested. MLC Nominees in trade or commerce engaged in conduct in relation to financial services that was misleading or deceptive or was likely to mislead or deceive and thereby contravened s 1041H of the Corporations Act and s 12DA of the ASIC Act - order that MLC Nominees pay a pecuniary penalty of $22.5 million for its contraventions of s 12DB of the ASIC Act in respect of no-adviser members and a penalty of $27 million for its contraventions of 12DB in respect of linked members,

Australian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd [2020] FCA 1312
CONSUMER LAW – consideration of whether the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) and the National Credit Code (the Code), Schedule 1 to the NCCP Act, apply to 232 contracts for the provision of credit in the form of hire purchase style contracts – consideration of whether the contracts are credit contracts – consideration of the elements of provision of credit – consideration of the construction to be attributed to each of the subsections of s 9 in the context of the statutory purpose
CONSUMER LAW – consideration of the following provisions of the NCCP Act: ss 3, 5, 7, 8, 29, 47, 64, 65, 71, 166, 168, 169, 177, 187 – consideration of the following provisions of the Code: ss 3, 4, 5, 6, 9, 17, 23, 32A, 32B, 111, 112, 113, 116, 122, 124, 204
CONSUMER LAW – consideration of whether conduct said to engage contraventions of the Code also engages contraventions of the Australian Securities and Investments Act 2001 (Cth) (the ASIC Act) – consideration of ss 12DA(1), 12DB(1)(a), 12DB(1)(g), 12BAA(7), 12BAB(1) of the ASIC Act – consideration of the terms “standard, quality, value or grade” in s 12DB(1)(a) of the ASIC Act
STATUTORY CONSTRUCTION – consideration of the principles to be applied – consideration of provisions of the NCCP Act and the Code – consideration of whether the directors of the respondent corporation were knowingly concerned in the contraventions of the Code by the respondent corporation and whether they were knowingly concerned in the respondent corporation’s contraventions of the ASIC Act – consideration of s 12GBA(1)(e) of that Act – consideration of the principles derived from Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 – consideration of the state of knowledge that must be shown to exist in the relevant person before such a person is knowingly concerned in the contraventions of another – consideration of authorities of intermediate courts of appeal applying principles of accessorial liability under the statutory text in issue

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145
COMPETITION – applications for review of decision of the Australian Competition Tribunal (Tribunal) reviewing decision of the Australian Competition and Consumer Commission (ACCC) – where ACCC made an arbitration determination pursuant to s 44S of Competition and Consumer Act 2010 (Cth) (CCA) – where Tribunal conducted a “re-arbitration” pursuant to s 44ZP of the CCA – where declared service is the right to access and use monopoly infrastructure assets at Port of Newcastle – where access dispute concerns quantum of charges levied for access and use of declared service and proper scope of application of such charges – whether Tribunal erred in determining how declared service is to be interpreted and appropriate scope of application of arbitration determination – whether scope can be justified by reference to the underlying State legislation being the Ports and Maritime Administration Act 1995 (NSW) – where parties agreed to use building block model and depreciated optimised replacement cost methodology to calculate regulated asset base – whether Tribunal erred in deciding that contributions of service users should not be deducted when calculating regulated asset base – meaning of “extensions” in s 44X(1)(e) of the CCA – application of pricing principles in s 44ZZCA and criteria in s 44X(1) of the CCA – whether assessment is forward-looking – appropriate relief – whether matter should be remitted to Tribunal pursuant to s 44ZR(4) of the CCA
ADMINISTRATIVE LAW – application for judicial review of decision of the Tribunal by ACCC – where ACCC made arbitration determination pursuant to s 44S of CCA – where Tribunal conducted a “re-arbitration” pursuant to s 44ZP of the CCA – where ACCC sought declaration that Tribunal erred – whether ACCC can seek review pursuant to s 163A(3) of the CCA 

Explorer Pty Ltd t/as I&D Industries v System Logix Pty Ltd [2020] NSWSC 1198
CONTRACT – Whether representations misleading and deceptive under Australian Consumer Law, s 18 – Where some of the representations were mere puffs – Where some representations were false – Whether Plaintiff entitled to damages under Australian Consumer Law, s 236 – Whether Defendant involved in making false representation under Australian Consumer Law, s 2 – Where Defendant did not know representations were false at the time they were made
PRACTICE AND PROCEDURE – Admissions – Where Defendants/Cross-claimants repeated Plaintiff’s claims in their cross-claim against third party – Held not an admission
EVIDENCE – Expert evidence – Where expert did not personally conduct inspection – Where expert report based on photographs taken by others

Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2020] NSWSC 1201
Plaintiffs entitled to damages; Council’s claim for misleading or deceptive conduct to be dismissed
CONTRACTS – joint venture to develop Council’s land into car park and residential-commercial development CONTRACTS – parties – whether second plaintiff a successor to first plaintiff and able to sue under joint venture agreement
CONSUMER LAW – misleading or deceptive conduct – whether first plaintiff’s failure to provide Council with geotechnical report prior to entry into joint venture agreement was misleading or deceptive – whether warranties and indemnities in joint venture agreement should be declared void
Trade Practices Act 1974 (Cth)

Luben Petkovski v Kai Yin Huang (No. 4) [2020] NSWSC 1182
Orders for interest and costs made.
INTEREST - interest up to judgment – loss of opportunity – compensation awarded to cross-claimants on the basis of a market valuation of real property as at the date of hearing including capital gains up to that date – property income producing – whether pre-judgment interest should be awarded.
COSTS - claim and cross-claim – mixed result on some claims in the proceedings – some claims took substantially more time than other claims – whether one party was substantially successful – what is an appropriate cost order in the circumstances.
In the Court’s first judgment the Huangs were held to be substantially successful in establishing their claims for unconscionable conduct, misleading and deceptive conduct and economic duress against the cross-defendants.

Gallagher v Associated Equipment Pty Ltd [2020] QCA 183
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), to challenge a judgment that found him to have caused loss by engaging in misleading or deceptive conduct – where the relevant conduct was the provision of a tax invoice by Evolution Piling Pty Ltd, of which the applicant was the director, which was held to have falsely represented that there had been an unconditional sale of four pieces of drilling equipment – where leave to appeal is granted as a matter of discretion and usually only where: (i) there is an important point of law or question of general or public importance, and (ii) there is a reasonable argument that there is an error to be corrected, because it is necessary to correct a substantial injustice to the applicant – whether leave to appeal should be granted
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the learned trial judge made two central findings: (a) the Evolution tax invoice was misleading because it falsely represented that there had been an unconditional sale of the equipment effective to confer title on Slap; and (b) Mr Spong (and therefore Associated) relied upon the Evolution tax invoice, and it caused him to decide to have Associated purchase the equipment from Slap and borrow money to facilitate that purchase – where the appeal seeks to challenge those two findings – whether those grounds of appeal lack merit
District Court of Queensland Act 1967 Qld s 118(3)

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.

Share this