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Inside track: Competition & Consumer

18 August 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Older men charged more for using Tinder's premium service, Choice mystery shoppers find
An investigation by consumer group Choice has found dating app Tinder is charging some Australians far more than others for access to its premium service Tinder Plus. Choice alleges Tinder's terms of use are not sufficiently transparent, because Tinder users are not told their personal data may be used to set pricing (12 August 2020).  More...

ACCC says bank screen scraping warnings are not anti-competitive
The ACCC has said warnings to consumers from banks over the use of screen scraping are not designed to lower competition in the local market, and are general security warnings. The commission added it currently has six investigations looking into anti-competitive conduct in the finance sector, as well as working on a market study, and introducing the Consumer Data Right (10 August 2020).  More...

ACCC sides with banks in screen scraping warning war
Australia’s competition watchdog has sided with the major banks over accusations that warning customers against using third-party fintech apps and other services that employ screen scraping constitutes an abuse of market power (10 August 2020) .  More...

ACCC commences review of chicken meat industry in Australia
The ACCC has commenced a self-initiated review of the chicken meat industry in Australia. The review will run to December 2020 and will focus on the commercial relationships between growers and processors. This review is akin to our recent work in assessing potential harms to competition in the agricultural machinery sector (07 August 2020).  More...

West Gate Tunnel fight sent to arbitration
CPB and John Holland builders accused Transurban of engaging in misleading or deceptive conduct over the extent of contaminated soil at the site before the deal was signed. Justice Kevin Lyons on Friday ruled a tribunal and not the Supreme Court was best placed to sort out the dispute between the company and its builders (07 August 2020).  More...

Ad claims found unsubstantiated
AFT Pharmaceuticals has again suffered disappointment in the Federal Court over advertising for Maxigesic, which was found to be misleading. AFT was seeking to re-open the matter after the final judgement had been given, but before it was published, saying the Court had misapprehended its case (07 August 2020).  More...

Two companies fined $25,200 for alleged unlawful importation and advertising of infrared thermometers in relation to COVID-19
The TGA has issued two infringement notices, each for $12,600, to Melbourne-based companies for allegedly importing non-contact infrared thermometers and  advertising on the VeraTemp Pty Ltd website for non-contact infrared thermometers falsely suggested that the thermometers had been approved by the TGA (06 August 2020).  More...

The ACCC says influencers must disclose when they post sponsored content – but admits it has never penalised anyone for breaking the rules
No Australian influence has ever been sanctioned or faced a penalty from the ACCC for not marking their posts as sponsored.  As the influencer industry has become more professional, industry groups have increasingly encouraged advertising disclosure (06 August 2020).  More... Note: in July 2020, the Australian Influencer Marketing Council published its first ever first ever code of practice for influencers  which outlines best practice for creators, including how to disclose advertising on different types of content.

Crossing the Creepy Line: Google, Deception and the ACCC
The ACCC is yet another regulatory body that has thrown itself into the fray, taking its second case against Google to the Australian Federal Court. Central to this action is the claim that will come as little surprise to watchers of the Silicon Valley scene: the instance of “deception by design.” (05 August 2020).  More...

Sumo Power allegedly misled consumers about electricity pricing
The ACCC has instituted proceedings in the Federal Court against Sumo Power Pty Ltd (Sumo) alleging it made false or misleading representations to Victorian consumers in relation to its electricity plans. ACCC claims Sumo subsequently misled consumers when advising them that the price increases were due to wholesale energy cost factors including generation cost rises and “climate change and ageing assets forcing the closure of cheap coal fired power stations” (05 August 2020).  More...

Practice and regulation

ACCC Consultation:  draft news media bargaining code
The ACCC has released its draft mandatory media bargaining code for consultation. The code seeks to address the fundamental bargaining power imbalance between Australian news media businesses and major digital platforms. Consultation on the draft code will now take place until 28 August 2020. See here for more details.

Consumer Safeguards Review Part C: Choice and fairness - consultation paper
Department of Infrastructure, Transport, Regional Development and Communications (Australia)
Government of Australia: 27 July 2020
The Consumer Safeguards Review is examining what consumer safeguards are required for a changing communications environment, with a focus on the post-2020 environment. This consultation paper seeks the public's views on proposals for reform regarding choice and fairness in the retail relationship between customers.  More...

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 password does not appear to have the purpose or effect of substantially lessening competition.”

Consultation Reminder: Country of origin food labelling
The evaluation of country origin labelling for food will consider if the labels are helping consumers make more informed choices, as well as clarifying the origin claims that businesses can make, while avoiding excessive costs for businesses which will be passed onto shoppers. A discussion paper and an opportunity to provide views is available at consult.industry.gov.au until 11 September. More information on country of origin labelling is available at foodlabels.industry.gov.au 

ACCC Consultations
Consumer Data Right - Energy rules framework consultation - closes 28 August

Guidelines on Part XICA - Prohibited conduct in the energy market
These guidelines set out how the ACCC will interpret Part XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they explain the general approach the ACCC will take in investigating alleged contraventions of Part XICA (prohibiting certain conduct involving retail pricing, financial contract markets and electricity spot markets) Part XICA will be in effect from 10 June 2020 to 1 January 2026.  More...

Cases

Berry v CCL Secure Pty Ltd [2020] HCA 27
Appeal allowed. Damages –  Misleading  or  deceptive conduct  – Where first appellant induced to give up agreement by respondent's  misleading  or  deceptive conduct  in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its  misleading  or  deceptive conduct  it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means. Words and phrases – "balance of probabilities", "counterfactual lawful termination", "deliberate contravention", "evidential burden", "lawful means alternative", "legal burden", " misleading  or  deceptive conduct ", "notice of termination", "presumption against wrongdoers", "real (not negligible) possibility", "recovery of damages for lost commercial opportunities", "reversal of onus of proof". Trade Practices Act 1974 (Cth), ss 52, 82.

RSA Express Pty Ltd v Guilfoyle [2020] FCA 1157
CONSTITUTIONAL LAW – consideration of an application to dismiss paragraphs of an amended Statement of Claim which seek to plead relief based upon facts said to give rise to a claim of invalidity arising by operation of s 109 of the Constitution – consideration of a claim said to arise under s 117 of the Constitution – consideration of a claim said to arise under s 46(1)(a) of the  Competition and Consumer Act 2010 (Cth)
The applicant pleads that the conduct of the WHS regulator in making the two amendments to the September 2017 agreement on behalf of the State was the expression of the exercise of the WHS regulator’s substantial power in six pleaded markets which “has lessened or will substantially lessen  competition ” in each market in the way pleaded
Competition and Consumer Act 2010  (Cth), ss 2B, 46(1)(a), 80, 82
Competition Policy Reform (Queensland) Act 1996  (Qld), ss 3‑6, 8, 10, 13, 14

Sandoz Pty Ltd v H. Lundbeck A/S [2020] FCAFC 133
CONTRACTS – proper construction of settlement agreement compromising patent proceedings – effect of clause granting appellant licence to exploit patent prior to its expiry – where clause specified possible commencement dates but no end date – whether licence continued to apply in relation to acts occurring after expiry of term of the patent and before the term was subsequently extended – consideration of surrounding circumstances known to the three parties to settlement agreement and commercial purpose or objects of transaction – whether on appellant’s construction the settlement agreement produced a commercially nonsensical result – whether settlement agreement provided appellant with a defence to infringement proceeding
PATENTS – s 223(10) of the Act –PATENTS – s 79 of the Patents Act 1990 - PATENTS – s 79 of the Act –
COURT ORDERS THAT: The appeal be allowed. The cross-appeal be dismissed.
REASONS FOR JUDGMENT
THE COURT: Her Honour also made a declaration that Sandoz had engaged in conduct that was  misleading  or deceptive or likely to mislead or deceive.    The primary judge also ordered Sandoz to pay damages to Lundbeck in the amount of $16,219,000 plus interest and to the second respondent (“Lundbeck Australia”) in the amount of $1,369,000 plus interest. 

Jornad Pty Ltd v Sapme Pty Ltd (No. 2) [2020] ACTSC 201
Judgment for plaintiff CONSUMER LAW –  MISLEADING  OR  DECEPTIVE CONDUCT  – Sale of business – claim against vendor pursuant to s 18 of Sch 2 of the Competition and Consumer Act 2010 (Cth) – whether vendor made misrepresentations as to turnover, profitability and the payment of rent – whether purchaser relied on vendor’s statements – where business failed – whether purchaser contributed to the failure of the business. Competition and Consumer Act 2010 (Cth) – s 137B, Sch 2 (ss 18, 236, 237)

One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property Pty Ltd [2020] NSWSC 1043
Proceedings dismissed with costs
CONTRACTS – building contract – construction – conditions precedent – whether conditions precedent were to formation of contract or parties’ performance of their obligations under the contract – whether defendant contractor obliged to commence work under contract – whether failure by defendant to provide bank guarantees and evidence of home warranty insurance caused plaintiff to suffer damage
CONTRACTS – ambit of exclusion clause – whether exclusion clause survived consensual termination of contract
CONTRACTS – remedies – damages – whether plaintiff principal proved it had suffered damage by reason of defendant’s conduct
CONSUMER LAW –  misleading  or  deceptive conduct  – where director of defendant represented guarantee was genuine – where bank guarantee was not genuine – where plaintiff general manager saw at once that bank guarantee was not genuine – whether plaintiff has suffered any loss by director’s conduct
Competition and Consumer Act 2010 (Cth), Sch 2 (‘Australian Consumer Law’)

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