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Inside track: Competition and Consumer Law

16 April 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

iSelect in court for alleged misleading conduct and claims about energy plan comparisons
The ACCC has instituted proceedings in the Federal Court against iSelect Limited, for misleading or deceptive conduct and false or misleading representations in relation to its energy plan comparison service. The ACCC alleges, iSelect has claimed consumers using its website would benefit from iSelect comparing all plans available from its partner retailers in a specific location (12 April 2019).  More... 

IAG faces class action over 'misleading' sales tactics
Insurance Australia Group faces a Federal Court class action over alleged "misleading and deceptive conduct" spanning almost a decade in the sale of add-on car insurance through its subsidiary Swann Insurance, in a case that could include thousands of claimants (11 April 2019).  More... 

Charges laid against alleged forex price fixing cartel
Criminal cartel charges have been laid 'against a money transfer business and five individuals for allegedly fixing the Australian dollar / Vietnamese dong exchange rate and fees they charge their customers'. This relates to exchange rates and fees charged between 2011 to 2016. Charges were filed in the Magistrates' Court of Victoria (11 April 2019).  More...  

New water charge rules from July 2020
The ACCC welcomes amendments to the water charge rules designed to improve pricing transparency and make it easier for operators to comply. The changes will commence on 1 July 2020. Operators’ existing water charge rules obligations will mostly continue under the new rules (09 April 2019).  More...  

Vic Solar Technologies Pty Ltd and Sunny Srinivasan - commencement of action
Consumer Affairs Victoria has started legal action against a solar company that we allege did not comply with the unsolicited consumer agreement provisions of the Australian Consumer Law (Victoria), among other breaches of consumer law. Consumer Affairs allege that between 2013 and 2019, the company misled consumers in the marketing and selling of solar panels and solar inverters among other things.  More... 

Lendlease face potential class action
Lendlease, which is currently building the delayed NorthConnex project in Sydney, will now face a potential class action following a surprise $350 million write down on its engineering business on 9 November. Maurice Blackburn alleges Lendlease broke the Corporations Act by failing to properly inform its shareholders about serious issues in its engineering and services arm and by “engaging in misleading and deceptive conduct” (08 April 2019).  More... 

Funeral insurance company slammed by the banking royal commission rebranding
A funeral insurer slammed by the banking royal commission for potentially misleading Indigenous customers has rebranded and enlisted a former NRL star as an ambassador (08 April 2019).  More... 

Viagogo denies misleading customers in face of consumer and industry backlash
Ticket reseller Viagogo says it is good for competition, despite thousands of complaints and some artists and venues banning its tickets (06 April 2019).  More... 

Android enjoyed and camera sky fined record $3 million for breaking Australian consumer laws
Digital Marketing Solutions — which traded online as Android Enjoyed and Camera Sky — and its Hong Kong-based director also failed to repair goods and misled consumers, the New South Wales Supreme Court found. NSW Fair Trading received 637 consumer complaints about the company between January 2017 and July 2018 (05 April 2019).  More... 

ACCC ends probe into anti-competitive behaviour by 'big four'
The ACCC has 'not found sufficient evidence' to proceed with an investigation into Deloitte, EY, KPMG and PwC over allegations of "cartel-like behaviour". The ACCC Chairman, Rod Sims, wrote: 'On the information before it, the ACCC has not found evidence that provides a basis to take further investigative action with respect to the allegations at this time' (03 April 2019).  More... 

Power retailer Synergy accused of price-gouging customers up to $100 million
Electricity producer Synergy overcharged industrial customers for the price of energy in the wholesale market by up to $100 million, an investigation by Western Australia's independent economic regulator has alleged (03 April 2019).  More... 

Practice and Regulation

Monitoring of supply in the National Electricity Market - March 2019 report
Australian Competition and Consumer Commission: 29 March 2019
This is the ACCC's first report as part of its public inquiry to monitor the prices, profits and margins in the supply of electricity in the National Electricity Market. It sets out how the ACCC will monitor the supply of retail and wholesale electricity in Queensland, NSW, Victoria, South Australia, Tasmania, and the ACT.  More... 

ACCC budget
The Treasury Portfolio budget statement on the ACCC is avaliable here. The papers show total departmental resourcing up from $250.7 million to $285.5 million and average staffing numbers up from 964 to 1,022 (total new departmental appropriations up from $210m to $235.1m). Outcome 1: Lawful competition, consumer protection, and regulated national infrastructure markets and services through regulation, including enforcement, education, price monitoring and determining the terms of access to infrastructure services (04 April 2019)

ABCC e-alert: NSW head contractors - false or misleading supporting statements
A head contractor who provides a supporting statement that is false or misleading may contravene the NSW security of payment laws. A template supporting statement can be found in Schedule 1 of the NSW security of payment regulations. If the ABCC identifies that a head contractor has provided a false or misleading supporting statement it may refer the matter to NSW Fair Trading. See details here  (11 April 2019)


Australian Competition and Consumer Commission v amaysim Energy Pty Ltd (trading as Click Energy) [2019] FCA 430
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18, 29(1)(g), 29(1)(i), 29(1)(m), 224, 246(2), 247(1); Evidence Act 1995 (Cth), s 191; Federal Court of Australia Act 1976 (Cth) ss 21, 43
THE COURT DECLARES THAT: Discount representations - Between 1 October 2017 and around March 2018, the Respondent (Click Energy), in trade or commerce, in connection with the supply or possible supply of energy or in connection with the promotion of the supply of energy to consumers:
(a) made false or misleading representations that the supply of energy under the relevant plans had benefits in contravention of section 29(1)(g) of the Australian Consumer Law (ACL);
(b) made false or misleading representations with respect to the price of energy under the relevant plans in contravention of section 29(1)(i) of the ACL; and
(c) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL. Held: Click Energy pay the ACCC’s legal costs of the proceeding fixed in the sum of $50,000.

Cheryl Drinkwater as trustee for the Cheryl Drinkwater Trust v Nadinic [2019] NSWSC 365
CONSUMER LAW – Misleading or deceptive conduct – Parties were engaged in a joint venture – Parties subsequently entered into deed of settlement – Whether deed of settlement was entered into by reason of conduct which was misleading or deceptive or likely to mislead or deceive – Misapprehension as to availability of GST input tax credits at the time deed of settlement was entered into – Representation by the defendant relating to GST input credits contributed to misapprehension – Defendant was aware of plaintiff’s misapprehension – Failure by to defendant to inform the plaintiff that refunds of GST input tax credits had been paid to a company of which the defendant was a director and the sole shareholder – Quantum of loss – Whether project would have been completed under the Joint Venture agreed absent the misapprehension

Commissioner for Fair Trading v Digital Marketing and Solutions Pty Ltd (ACN 614 430 983) trading as Android Enjoyed and Camerasky & Anor [2019] NSWSC 370
TRADE AND COMMERCE – Australian Consumer Law – whether the defendants breached ss 18, 29, 36 of the ACL – whether the defendants breached s 16 of the Electricity (Consumer Safety) Act 2004 (NSW) – quantum of a pecuniary penalty to be imposed – imposition of a period of disqualification from managing corporations. 


Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752

Ian Robertson, National Managing Partner
T: +61 2 8083 0401

Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613

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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