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Inside track: Competition & Consumer

18 August 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Corporate watchdog takes SmileDirectClub to court, alleging thousands misled by teeth straightening insurance claims
A company is accused of wrongly telling Aussies they could claim part of expensive teeth straightening treatment from their health insurer (13 August 2021).  More...

Phoenix Institute acted unconscionably and misled students
The Federal Court has found that former training college Phoenix Institute of Australia Pty Ltd and its marketing arm, Community Training Initiatives Pty Ltd, made false or misleading representations and implemented systems of unconscionable conduct in relation to online diploma courses (13 August 2021).  More...

Full Federal Court finds Employsure Google Ads misleading
The Full Federal Court has unanimously upheld an appeal by the ACCC in relation to Google Ads published by workplace relations advisor Employsure Pty Ltd. The Full Court found that Employsure had breached the Australian Consumer Law by making misleading representations that it was, or was affiliated with, a government agency, overturning the judgment of Justice Griffiths that dismissed this claim at first instance (13 August 2021).  More...

Contrasting views as ACCC, FSANZ weigh into ‘definitions of meat’ inquiry
RMAC chair John McKillop has expressed disappointment with the ACCC submission, stating that fair trading laws and food laws in Australia and New Zealand require that labels do not misinform consumers through false, misleading or deceptive representations (03 August 2021).  More...

Money remitters improve price transparency after ACCC inquiry
The majority of money remitters reviewed by the ACCC are now giving consumers the tools they need to easily compare the total price of international money transfers, following an earlier assessment (2020) which found numerous remitters lagging best practice. The latest review, found that 12 out of the 15 prominent remitters reviewed were either adhering to best practice price disclosure (10 August 2021).  More...

'They keep treating them badly': Watchdog accuses Telstra, Optus and TPG of misleading consumers over NBN speeds
Australian Competition and Consumer Commission is taking Telstra, Optus and TPG to court, alleging they misled hundreds of thousands of consumers over NBN speeds (09 August 2021).  More...

Insurers welcome landlord claim recovery method feedback
Last week, consumer group Choice and legal centre WEstjustice accused insurers of unfairly pursuing renters for accidental property damage costs after their landlords make claims. The advocacy groups are demanding the corporate regulator investigate industry practice across landlord insurance and assess if insurers have misled people (09 August 2021).  More...

NIOA wins case against Thales over 'misleading and deceptive behaviours'
After court action between Madritsch KG v Thales Australia (NIOA acting with the Austrian gunmaker), the Queensland Supreme Court has found in favour of the Madritsch/NIOA team, by leading them to believe that Thales had a continuing interest and even an intention to enter into a sub-licence agreement with NIOA for the Madritsch Solution (05 August 2021).  More...

ACCC launches legal action against Mercedes-Benz over Takata airbag recall
The ACCC has launched legal action against Mercedes-Benz over its handling of the Takata airbag recall. The consumer watchdog alleges that Mercedes-Benz exposed consumers to the risks of serious injury or death because it used language which minimised these risks, and gave the impression that the recall was precautionary (04 August 2021).  More...

In-N-Out Burger suing for trademark infringement over food delivery ‘ghost kitchens’
US burger giant In-N-Out has accused an Australian Business of engaging in misleading and deceptive conduct in the Federal Court, (04 August 2021).  More...

Practice and Regulation

ACCC Issues Paper: Digital Platform Services Inquiry – March 2022 Report on general online retail marketplaces
The ACCC will consider pricing practices; the use of data; the terms and conditions imposed on third-party sellers; and the impacts on competition when the marketplace itself operated as a seller on the platform. Submissions to the inquiry open until 19 August. The ACCC’s Issues Paper, including information on how the have a say, can be accessed here.

ACCC Consultation: Facebook advertisements
Closes 1 September 2021 - The ACCC is aware of advertisements on Facebook about cryptocurrency products featuring the name or image of an Australian public figure. These advertisements might look like articles or posts in your Facebook newsfeed. We are concerned that the advertisements may be false or misleading.
If you see one of these advertisements on Facebook, please take a screenshot and submit it to the ACCC.


Gold Titan Pty Ltd v Lopez [2021] FCA 918
CONTRACTS – whether employee breached confidentiality clause contained in employment contract – whether list containing compilation of client data “confidential” – whether the presence of details of some persons and organisations related to the business who are not clients prevents list from being a “client list”
EQUITY – whether employee breached equitable obligation of confidence – whether list containing compilation of client data has necessary degree of confidence
CONSUMER LAW – whether representations contained on website were misleading or deceptive – whether conduct complained of was in “trade or commerce” – whether representations contained in an email touting for business misleading or deceptive – whether mere puffery – whether representations have a tendency to lead members of class of prospective purchasers into error
DEFAMATION – whether company has standing to bring defamation proceedings – whether defamatory meanings or imputations were conveyed – whether imputations carry a defamatory meaning – whether imputations published
CONTRACTS – where invoice for products requested – where products received and sold – where invoice not paid – whether implied term in contract – whether supplier engaged in “disentitling conduct” limiting the purchaser’s ability to sell the product – whether compensation for alleged additional work incurred by purchaser outside scope of any agreement between the parties reduces supplier’s entitlements under the invoice
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 2, 18, 236; Defamation Act 2005 (NSW) ss 9, 25, 26; Sale of Goods Act 1923 (NSW)

Lighthouse Corporation Limited & Anor v Republica Democratica de Timor Leste & Anor (No 3) [2021] VSC 478
APPLICATION for summary dismissal pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) and ss 62 and 63 of the Civil Procedure Act 2010 in respect of counterclaim seeking declaratory relief only against individual in circumstances where relief is also sought by the counterparty for orders avoiding a contract and associated declaratory relief – whether counterclaim against individual for declaratory relief produces any foreseeable consequences or has utility - application for strike out parts of counterclaim pursuant to rule 23.02 of the Rules alleging post-contravention conduct said to be in contravention of s 51AC(1) of the Trade Practices Act 1974 (the TPA) where such contravening conduct is not relied upon as founding a claim for relief under s 87(1A) of the TPA but only for the purposes of s 87(1D) of that act – application for strike out of parts of counterclaim alleging post-contravention conduct where the-post contravention conduct is said to be time-barred by operation of s 87(1CA) of the TPA
In the counterclaim, Timor Leste, among other things: (a) Incorporates by reference the pre-contractual misrepresentations and alleges that they constitute misleading and deceptive conduct (‘the pre-contractual misleading and deceptive conduct ’) contrary to s 52 of the Trade Practices Act 1974 (Cth)
Conclusion: In light of the above matters, the counterclaim against Mr Jacobs will be dismissed; the paragraphs of the counterclaim relating to the post-contractual conduct will be struck out

Corestaff NT Pty Ltd v Insurance Australia Ltd [2021] QSC 195
1. The parties are directed to confer and provide to Chambers draft orders and brief written submissions as to the appropriate relief in light of these reasons and costs within 14 days.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – EXEMPTION CLAUSES – where proceedings have been commenced in the Federal Court against the applicant for damages for breach of contract and/or an order for compensation pursuant to section 236 of the Australian Consumer Law 2010 (Cth) (ACL) for misleading and deceptive conduct – where the applicant seeks declarations in respect of the proper construction of a policy of insurance which was issued by the respondent and held by the applicant – where the parties are in dispute about the proper construction of clauses 7.9(a) and (c) of the Policy – where the applicant contends that the alleged contraventions of ss 18 and/or 31 of the ACL in the Federal Court proceedings are covered by a policy of insurance issued by the respondent and held by the applicant – where the respondent contends that the ACL claims are excluded under clause 7.9(a) and/or clause 7.9(c) of the Policy – whether coverage for the ACL claims is excluded by clause 7.9(a) and/or clause 7.9(c) of the Policy Australian Consumer Law 2010 (Cth), s 18, s 31, s 236

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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