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Inside track: Competition and Consumer

18 March 2020

#Competition & Consumer Law

Inside track: Competition and Consumer

In the media

Case against Ramsay Health Care dismissed
The Federal Court has dismissed the ACCC’s case against Ramsay Health Care Australia Pty Ltd (Ramsay) for alleged misuse of market power and exclusive dealing. Whilst the Court found that Ramsay had a substantial degree of market power in the supply of private in-patient surgery services to surgeons in Coffs Harbour, the Court did not find there was sufficient evidence Ramsay made the alleged threats to surgeons (12 March 2020).  More...

BAR Group pays penalty for alleged misleading advertising
B.A.R Group Pty Ltd (BAR Group) has paid a penalty of $12,600 after the ACCC issued an infringement notice for allegedly misleading consumers about the running power of a portable generator. The ACCC alleges that BAR Group’s representation was false or misleading, in breach of the Australian Consumer Law. (11 March 202).  More...

Ad tech and ad agency services inquiry kicks off
The ACCC is calling for feedback and information about the digital advertising technology supply chain and advertising agency services in Australia. Views are sought from all companies who buy digital display advertising (10 March 2020).  More...

TWU urges Aldi to improve supply chain safety following court appearance
The Transport Workers' Union claims Aldi failed in its bid to silence truck drivers and unionists from speaking out about safety after the retail giant lost the Federal Court case. Aldi Australia has also responded with "We feel vindicated with [the] judgement, as it has clearly been stated by the court that the TWU’s conduct has been misleading and deceptive” (10 March 2020).  More...

Bushfire crisis highlights gaps in fundraising laws that government refuses to fix: Coalition for Fundraising Reform
“During the bushfires, it wasn’t the states and territories ensuring that fundraisers weren’t engaging in misleading or deceptive conduct, it was the ACCC. The reality is that the ACCC, working with the ACNC, is the best placed body in Australia to ensure integrity in charitable fundraising. Also, the Australian Consumer Law has a readymade mechanism for the ACCC to work with the states and territories.” (06 March 2020).  More...

Private health insurance premiums rise despite growing exclusions
For the first time, the majority of hospital treatment policies held by Australians now contain exclusions, the latest ACCC annual report into the private health insurance industry has found. More than 57 per cent of policies held by Australians contain exclusions, up from about 44 per cent in the previous year (02 February 2020).  More...

Australians spent $24.5bn on private health in 2018-19
This is despite receiving $20.7 billion in benefits, according to the ACCC's health insurance report released  indicating  premium-to-benefits discrepancy is narrowing, thanks to new standards implemented in 2019. The consumer commission is currently undertaking enforcement action relating to 'misleading and deceptive' conduct regarding consumer data in the health sector (02 March 2020).  More...

Proposal to set minimum prices on welding equipment raises competition concerns
The ACCC has announced it plans to revoke a resale price maintenance (RPM) notification lodged by Weldclass, which would have prevented retailers selling certain machines at a discount. (28 February 2020).  More...

Issues in agricultural machinery markets to be examined
Agricultural machinery: After-sales markets identifies a number of initial concerns relating to competition and fair trading issues, which the ACCC is seeking more information about. Most modern agricultural machinery has extensive data collection capabilities, but manufacturer policies on data ownership and management may raise privacy and competition issues (28 February 2020).  More...

Practice and Regulation 

Report to the Australian Senate on anti-competitive and other practices by health insurers and providers in relation to private health insurance
Australian Competition and Consumer Commission: 04 March 2020
This report analyses key competition and consumer developments and trends in the private health insurance industry between 1 July 2018 and 30 June 2019, including ACCC enforcement and other actions relating to the health sector.  More...

ACMA: Implementation of the Spectrum Pricing Review - consultation 07/2020
This paper outlines our proposed guidelines and focus areas as we implement the Spectrum Pricing Review.
Status Open, submissions close on 19 April 2020. Consultation number IFC 7/2020.  More...

ACCC inquiry: ad tech and ad agency services
The ACCC’s ad tech and ad agency services inquiry has commenced with the ACCC releasing an issues paper and seeking submissions from interested parties. Submissions are due by 21 April 2020 (10 March 2020).  More....

ACCC consultation: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26 GHz spectrum licences, the potential uses for the spectrum, the markets where this spectrum will be used, and any competition issues associated with how this spectrum is allocated. The ACCC is inviting submissions from interested parties by 27 March 2020.
The Minister has asked for the ACCC’s advice by mid-May 2020. The consultation paper is available here.

ACCC Discussion Paper: Agriculture machinery – after sales markets
The ACCC has released a discussion paper focusing on agriculture machinery aftermarkets. The associated survey is open until 5 April and submissions can be made on the ACCC’s consultation hub. See the discussion paper here (28 February 2020).

NSW: Changes to the residential tenancy laws
Changes to the residential tenancy laws start on 23 March 2020, with amendments to the Residential Tenancies Act 2010 (the Act) and the new Residential Tenancies Regulation 2019 (the new Regulation).
Strengthened information disclosure requirements - A landlord or agent must not make false or misleading statements or knowingly conceal certain material facts from a prospective tenant before they sign an agreement. The list of current material facts is available in the information statement (checklist for new tenants).  More...

Cases

Australian Competition and Consumer Commission v Ramsay Health Care Australia Pty Limited [2020] FCA 308
COMPETITION – proposal to establish rival day surgery to existing day surgery and private hospital in Coffs Harbour – alleged misuse of market power and exclusive dealing in contravention of ss 46 and 47 respectively of the Competition and Consumer Act 2010 (Cth) – failure to establish to the requisite standard that the pleaded conduct, which related to certain conversations, involved contravening conduct
EVIDENCE – application under ss 135 and 136 of the Evidence Act 1995 (Cth) to exclude or restrict parts of evidence given prior to retrieval of a sound recording – unfair prejudice not established in circumstances where relevant witnesses could be recalled and cross-examined on the basis of the sound recording
Competition and Consumer Act 2010 (Cth), ss 46, 47;  Evidence Act 1995 (Cth), ss 135, 136, 140

ALDI Foods Pty Limited as General Partner of ALDI Stores (a Ltd Partnership) v Transport Workers' Union of Australia [2020] FCA 269
COMPETITION LAW – secondary boycotts –  misleading  and  deceptive conduct
COMPETITION LAW – whether a union is a trading corporation – whether statements made by union made in trade or commerce – part of industrial campaign – part of conduct engaged in to inform the public
INDUSTRIAL LAW – union protests – freedom of speech – whether statement made in trade or commerce
TORT – injurious falsehood – no malice – no loss or damage – no relief
Constitution s 51; Competition and Consumer Act 2010 (Cth) ss 4, 6, 45D, 131, Sch 2 (Australian Consumer Law) ss 18, 31; Fair Work (Registered Organisations) Act 2009 (Cth); Trade Practices Act 1974 (Cth) ss 52, 53

Gill v Ethicon Sarl (No 6) [2020] FCA 279
CONSUMER LAW — representative action — nine urogynaecological medical devices made with polypropylene intended for permanent implantation in the female pelvis
PRACTICE AND PROCEDURE — representative action — answers to common issues/questions
RELIEF — injunctive relief — where information and warnings given by respondents about risks of injury from implantation of medical devices found to be inadequate and  misleading  or deceptive and proposed injunction would prevent respondents from supplying, distributing, marketing or promoting any medical devices without including in the instructions for use for each device and any promotional material relating to it a suitable warning — where proposed injunction unlikely to benefit group members and where changes made to instructions for use after hearing of action, whether injunctive relief should be granted — where recent amendments to Therapeutic Goods (Medical Devices) Regulations 2002 (Cth) require certain information about risks and other matters to be included in cards and leaflets to be sent to surgeons and patients, whether proposed injunction should extend to inclusion of proposed warning in instructions for use of those devices where devices are manufactured overseas and supplied with identical instructions for use throughout the world
Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) ss 232, 235

JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236
DEFAMATION – hybrid publication
CONSUMER LAW – claim under Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (ACL) for  misleading  or  deceptive conduct  –representations made to a journalist – representations in a Facebook Post which provided a link to a newspaper article – whether conduct was “in trade or commerce” – whether the representations were in fact conveyed by the relevant conduct – whether representation a statement of fact or opinion – whether the representations conveyed were  misleading  or deceptive or likely to mislead or deceive
CONSUMER LAW – claim under the ACL for  misleading  or  deceptive conduct  – whether website content conveyed representations about authorship of a novel – whether the conduct was in “trade or commerce” – whether the representations were in fact conveyed by the relevant conduct – claim for declaratory relief – whether any benefit to making of the declaration – whether financial loss or damage sustained from the conduct – declaratory relief refused
COPYRIGHT – whether infringement of copyright
COPYRIGHT – whether use of photographs on website was an infringement of copyright
TORTS – detinue Competition and Consumer Act 2010 (Cth) s 6(3), Sch 2 cl 18
Copyright Act 1968 (Cth) ss 10, 13, 31, 36, 115, 196; Defamation Act 2005 (NSW) ss 4, 25, 26, 28
Fair Trading Act 1987 (NSW) s 4, Div 2 ss 27, 28, 29, 30, 31, 32, Div 3 ss 33, 34

Infocus Tax and Business Advisory Pty Ltd v Andrews [2020] NSWSC 168
CIVIL PROCEDURE — Separate determination of questions — Where appropriate
COSTS — Security for costs — Relevant factors
Competition and Consumer Act 2000 (Cth); Uniform Civil Procedure Rules 2005 (NSW)
The statement of claim also alleges claims against all defendants under s 18 of the Competition and Consumer Act 2000 (Cth) Schedule 2 (the Australian Consumer Law). The allegation is to the effect that Mr Andrews Jr and VVV represented to Announcer that the warranties in the sale agreement were correct, which was  misleading  and deceptive or likely to mislead and deceive.

Wang v Polaris Holdings Rosebery Pty Ltd [2020] NSWSC 213
LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth [1834] EngR 1087; (1834) 1 Bing (NC) 370 – plaintiff entered into contract to purchase a stratum lot in an unregistered plan of subdivision – draft plan annexed to contract showed areas at various levels – whether areas should be understood as areas of the lot at those levels or floor areas at those levels – held that areas should be understood as areas of the lot – no substantial discrepancy between the subject matter of the sale and what was able to be conveyed – plaintiff had no right to rescind
LAND LAW – contract for sale of land – deposit – vendor entitled to forfeit deposit upon termination for purchaser’s failure to complete – statutory return of deposit – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – no grounds for order for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW)
MISLEADING AND DECEPTIVE CONDUCT  – contract for sale of stratum lot in unregistered plan of subdivision – draft plan annexed to contract showed areas of various levels – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – vendor did not engage in conduct that was  misleading  or deceptive or likely to mislead or deceive within the meaning of s 18 of Australian Consumer Law – no grounds for order for return of deposit
Australian Consumer Law

Tomlak Pty Ltd & Ors v Westpac Banking Corporation [2020] VSC 79
BANKS AND BANKING – Where Code of Banking Practice 2004 incorporated into contract – Whether defendant exercised care and skill of a diligent and prudent banker in selecting and applying their credit assessment methods and in forming their opinion about ability to repay credit facility – Where credit facility sought by plaintiffs for purchase of land for development or sale with permits for development – Where defendant had knowledge of proposed use of credit facility for purchase of land – Where defendant had knowledge of sources of income available to plaintiffs – Where defendant did not have plaintiffs’ financial statements for the immediately preceding two years – Where defendant did not inform plaintiff of need to provide cash equity for development – Defendant exercised care and skill of a diligent and prudent banker in selecting and applying their credit assessment methods – Code of Banking Practice 2004, cl 25.1 – Doggett v Commonwealth Bank of Australia [2015] VSCA 351; (2015) 47 VR 302 applied
BANKS AND BANKING – Where Code of Banking Practice 2004 incorporated into contract –Where defendant regularly approved excesses on overdraft account – Where defendant provided temporary overdraft facilities and extended existing credit facilities – Where defendant tolerated plaintiffs’ failures to comply with requests for financial information – Defendant used best endeavours and left no stone unturned in assisting plaintiffs to overcome their financial difficulties with credit facility – Code of Banking Practice, cls 2.2 and 25.2
MISLEADING OR DECEPTIVE CONDUCT – Whether defendant falsely represented to plaintiffs that an application for construction finance had a substantial prospect of success – Where defendant required plaintiffs to create a detailed financial plan – Where approval of further excesses on overdraft account contingent on detailed financial plan – Where plaintiffs issued with default notices – Defendant did not mislead or deceive plaintiffs – Australian Consumer Law, s 18
MISLEADING OR DECEPTIVE CONDUCT – Whether defendant misled or deceived the plaintiffs by proposing a conditional repayment plan and then subsequently serving demands for payment within one business day – Where defendant issued plaintiffs with a notice of default subsequent to conditional repayment plan – Where defendant provided a funding proposal subsequent to issuing notice of default – Where plaintiff failed to respond to funding proposal – Where defendant expressly reserved their rights – Defendant did not mislead or deceive plaintiffs – Australian Consumer Law, s 18
UNCONSCIONABLE CONDUCT – Whether defendant engaged in unconscionable conduct towards the plaintiffs – Defendant did not engage in unconscionable conduct – Australian Consumer Law, ss 20 and 21 – Paciocco v Australian New Zealand Banking Group Limited (2015) 236 FCR 199 applied

Legislation

Commonwealth

Acts Compilation

Designs Act 2003
10/03/2020 Act No. 147 of 2003 as amended

Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Act 2020
02/03/2020 - Act No. 9 of 2020 as made

Regulations

Biosecurity (Suspended Goods—Cats and Dogs Malaysia) Determination 2020
11/03/2020 - This instrument suspends the importation or bringing into Australia of cats and dogs that are companion or assistance animals from Malaysia for a period of 6 months from the commencement of the instrument, with some exceptions.
(iii certain defects in Malaysia’s processes to provide veterinary health certifications mean that there is a risk that cats and dogs being imported to Australia from Malaysia may have been exposed to diseases exotic to Australia [but endemic to Malaysia].
(iv)  In particular, veterinary health certification provided in support of the importation of cats and dogs arriving from Malaysia may have been false and misleading

NSW

Regulations and other miscellaneous instruments
Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Regulation 2020 (2020-88) — published LW 13 March 2020

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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