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Inside track: Competition & Consumer

18 February 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Australian consumer watchdog to examine anti-competitive behaviour by Google and Facebook
The competition watchdog will conduct two new inquiries into possible anti-competitive behaviour by digital platforms such as Facebook and Google, and services allowing online advertisers to target Australian internet users (15 February 2020).  More... 

How the coronavirus emergency is exploited on eBay and Amazon
Retailers on eBay, Amazon and other platforms are selling bogus products, seeking to exploit the novel coronavirus outbreak. The Therapeutic Goods Administration has warned companies against making misleading health claims (15 February 2020).  More...

Google to Viagogo: Welcome back!
Despite a Federal Court ruling against Viagogo in April 2019 for making false or misleading claims and engaging in misleading conduct, Viagogo is clearly still not doing enough to prevent scam artists from using its site to swindle consumers (13 February 2020).  More... 

ASIC bans Macquarie adviser
Macquarie Equities financial adviser Warren Acworth has been banned by the Australian Securities and Investment Commission (ASIC) from providing financial services for engaging in misleading conduct relating to a financial product (13 February 2020).  More...

Court rules on ‘Urban Ale’ trade mark battle
Docklands-based Urban Alley in February 2018 lodged Federal Court proceedings alleging La Sirene infringed its Urban Ale trade mark; and misleading and deceptive conduct, as well as passing off.  Justice O’Bryan dismissed Urban Alley’s claims, finding there were “overwhelming reasons” why La Sirène’s marketing and sale of its Urban Pale product did not infringe Australian Consumer Law or constitute passing off (12 February 2020).  More... 

Australia investigator in Citi cartel case learned of concerns from rival agency
An Australian investigator who helped bring criminal cartel charges against Citigroup Inc (C.N) and Deutsche Bank AG (DBKGn.DE) said he first heard concerns about a stock issue they worked on from a rival regulator, but the agencies acted independently (11 February 2020).  More... 

4WD hire firm goes into liquidation as clients chase money owed amid court action
The ACCC is suing Smart Corporation, which ran Australian 4WD Hire, through the Federal Court. The ACCC is alleging Smart Corporation, through its then-subsidiary Australian 4WD Hire, engaged in misleading and deceptive conduct and unconscionable conduct, used unfair contract terms and made false or misleading representations in relation to insurance cover (09 February 2020).  More....

Adani pleads guilty to giving 'false or misleading documents to an administering authority', fined $20k
Mining giant Adani has been fined $20,000 after pleading guilty to providing false or misleading information to Queensland's environmental regulator. No conviction was recorded against the company Adani Mining Pty Ltd, in the Brisbane Magistrates Court (06 February 2020).  More...

Consumer Data Right rules made by ACCC
The ACCC has formally made the Competition and Consumer (Consumer Data Right) rules, which is a key development in progressing the Consumer Data Right in banking. Product reference data includes information such as interest rates, fees and charges, and eligibility criteria for banking products like credit cards and mortgages (05 February 2020).  More... 

Practice and Regulation 

National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019 (No. 2)
On 5 December 2019, the Senate referred the above inquiry for report by 6 April 2020. This Bill amends the regulatory framework for Small Amount Credit Contracts (commonly known as payday loans) and consumer leases (known as rent-to-buy schemes). The inquiry is here. Submissions closes 21 February 2020.

ACCC discussion paper: Ocean liner shipping class exemption
The ACCC is seeking comments on a possible class exemption from competition laws for  liner shipping. A discussion paper has been released and submissions may be made until 28 February 2020. See ACCC, ‘Ocean liner shipping class exemption’ (class exemption register) and ACCC discussion paper - Ocean liner shipping class exemption

Cases

Urban Alley Brewery Pty Ltd v La Sirene Pty Ltd [2020] FCA 82
TRADE MARKS – infringement – use as a trade mark – whether respondent infringed applicant’s mark by using the “Urban Pale” name as a trade mark – defences to infringement – good faith use – prior use – exercise of a right to use a trade mark – cancellation – whether mark capable of distinguishing goods – whether marks substantially identical or deceptively similar – whether applicant had valid claim to ownership of marks at priority date – whether applicant acquired reputation in its mark – whether use of respondent’s marks would be likely to deceive or cause confusion – whether Court should exercise its discretion under s 88(1)(a) of the Trade Marks Act 1995 (Cth) to order cancellation of marks – groundless threats – effect of assignment of mark – where cross-claimant delayed in seeking declaratory relief under s 129(2) of the Trade Marks Act (Cth) – application dismissed – order made for cancellation of applicant’s mark – cross-claim otherwise dismissed
CONSUMER LAW – principles governing the tort of passing off and ss 18 and 29 of the Australian Consumer Law – whether respondent’s use of the “Urban Pale” name constituted  misleading  and  deceptive conduct  and passing off – claims dismissed

Rural Funds Management Limited as Responsible Entity for the Rural Funds Trust and RF Active v Bonitas Research LLC [2020] NSWSC 61
CORPORATIONS LAW – CONSUMER LAW – Corporations Act 2001 (NSW) ss 1041D-1041F and 1041H, Australian Securities and Investments Commission Act 2001 (Cth) s 12DA – United States “activist short sellers” circulate and disseminate statements and information about registered management investment schemes in Australia units in which are listed on the Australian Stock Exchange likely to induce persons to dispose of units – where the statements and information are false in material particulars, materially misleading, and deceptive or likely to mislead or deceive – whether requirements of s 1041D are met – whether requirements of ss 1041E, 1041F and 1041H and s 12DA of the ASIC Act are met – requirement under s 1041D for dissemination to the effect that the price will fall because of a transaction or other thing done in relation to financial products in contravention of other provisions and disseminator to have done the transaction or other thing
HELD – such requirement not met here – the dissemination itself cannot be the transaction or thing done – requirements of other sections met
HELD – defendants contravened ss 1041E, 1041F and 1041H and s 12DA of the ASIC Act.

Nadinic v Cheryl Drinkwater as trustee for the Cheryl Drinkwater Trust [2020] NSWCA 2
(1) Appeal dismissed.(2) The appellant pay the respondent’s costs of the appeal.
CONSUMER LAW –  misleading  or  deceptive conduct  – where parties engaged in joint venture – where subsequently parties entered deed of settlement to resolve disputes – where one party misunderstood financial position of an entity being acquired under deed – where that party did not make inquiries to verify position – where other party participated in causing the misunderstanding, was aware of it and failed to correct it – whether conduct  misleading  or deceptive
TAXES AND DUTIES – GST – input tax credits – entitlement to refunds

Australian Securities and Investments Commission v One Tech Media Ltd [2020] FCA 46
CORPORATIONS – binary options trading offered through websites – whether “financial services business” carried on in Australia – whether Australian financial services licence required – s 911A of Corporations Act 2001 (Corporations Act) contravened – meaning of “arranging for” issue of financial product in s 766C(2) of Corporations Act – whether provision of paying agency services constituted “arranging for” issue of binary options – meaning of “provide a custodial or depository service” under s 766E of Corporations Act – whether money may be a “facility” for the purpose of s 763A(1) of the Corporations Act – failure to issue product disclosure statement when offering to issue financial product – s 1012B(3) of Corporations Act contravened – false statements,  misleading  or  deceptive conduct  and dishonest conduct – ss 1041H, 1041E and 1041G of the Corporations Act – unconscionable conduct under s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (ASIC Act) – application of factors in s 12CC(1) of ASIC Act

Legislation

Commonwealth

Bills

Telecommunications Legislation Amendment (Competition and Consumer) Bill 2019
Senate: Introduced and read a first time  13/02/2020 - Introduced with the Telecommunications (Regional Broadband Scheme) Charge Bill 2019, the bill amends the: Competition and Consumer Act 2010 and Telecommunications Act 1997 in relation to: Layer 2 bitstream services; and statutory infrastructure providers; Competition and Consumer Act 2010 and Telecommunications Act 1997 and two legislative instruments in relation to local access lines; Competition and Consumer Act 2010, Telecommunications Act 1997 and Telecommunications (Consumer Protection and Service Standards) Act 1999 in relation to funding of fixed wireless broadband and satellite broadband; and National Broadband Network Companies Act 2011 to require NBN Co to provide certain data about premises connected, or due to be connected, to the NBN. Also repeals four declarations.

Regulations

Competition and Consumer (Consumer Data Right) Rules 2020
05/02/2020 - This instrument prescribes the Consumer Data Right as an economy-wide reform that will apply sector-by-sector, starting with the banking sector. The Competition and Consumer (Consumer Data Right) Rules 2020 deal with aspects of the Consumer Data Right regime as provided in Part IVD of the Competition and Consumer Act 2010, including the accreditation process, the use and disclosure of CDR data, dispute resolution, and rules in relation to the Privacy Safeguards.

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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