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Inside track: Competition and Consumer Law

19 August 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

More than half of us have lost money due to financial services misconduct: study
The most common problems cited in the survey are "inappropriate but not illegal" issues such as high fees, being offered credit cards or increases to credit limits when not requested, poor or misleading information and being charged for services that were never received (19 August 2019).  More...

Delivering a fair and competitive car retailing sector
The Morrison Government will reform the new car retailing sector, to make the system fairer for consumers, dealers and manufacturers. Minister for Industry, Science and Technology Karen Andrews said a range of reforms to automotive franchising arrangements will be considered, after a recent public consultation (14 August 2019).  More... 

Europcar to pay $350,000 penalty for excessive card payment surcharges
The Federal Court has ordered CLA Trading Pty Ltd (trading as Europcar) to pay $350,000 in penalties for charging excessive credit and debit card payment surcharges in breach of the Competition and Consumer Act 2010. Eurpocar admitted that, between July and August 2017, Europcar charged Visa and MasterCard credit users fees that were higher than Europcar’s costs to accept payments from those credit cards (14 August 2019).  More... 

Bargaining imbalance between media and digital platforms must be addressed
In a speech reflecting on the recommendations in the final report of the ACCC’s Digital Platforms Inquiry, released last month, Mr Sims recommended an enforceable bargaining code administered by the ACMA to ensure that media businesses are treated fairly, reasonably and transparently by the large digital platforms (13 August 2019).  More... 

Inquiry into Murray-Darling Basin water markets commences
As a formal inquiry under the Competition and Consumer Act 2010, the ACCC will have access to compulsory information gathering powers that will enable a thorough examination of competition and transparency issues in the markets (13 August 2019).  More...

Former financial advisor and consultant charged with dishonest conduct
Mark Damion Kawecki, of Frankston Victoria, has been charged with five counts of dishonest conduct. Mr Kawecki appeared before the Melbourne Magistrates Court. ASIC alleges that Mr Kawecki submitted applications for shares which contained false or misleading information about the beneficial holder of those shares and/or false or misleading information about the applicant’s address (12 August 2019).  More...

Preliminary concerns on Saputo buying cheese business
The ACCC has preliminary competition concerns about dairy company Saputo’s proposed acquisition of the Tasmanian-based cheese business of competitor Lion Dairy & Drinks. Some farmers have told the ACCC that Lion has been offering competitive contract terms, including better prices for winter milk and an option to fix the price of a percentage of their milk for up to three years (08 August 2019).  More... 

400,000 NAB customers notified of 'junk insurance' class action
In one of the largest court-ordered notices in the nation's legal history, more than 400,000 Australians were notified they may be eligible for a class action accusing National Australia Bank (NAB) of selling “junk” consumer credit insurance (CCI). The NAB claim alleges the lender engaged in unconscionable, misleading and deceptive conduct (09 August 2019).  More...

Former MG managing director Gary Helou may seek to put ASIC case on hold
Murray Goulburn's former managing director Gary Helou and chief financial officer Brad Hingle have until August 14 to lodge an application to have a case of misconduct proceedings  brought against them by the corporate regulator put on hold (08 August 2019).  More...

HealthEngine in court for allegedly misusing patient data and manipulating reviews
The ACCC has instituted proceedings in the Federal Court against online health booking platform HealthEngine Pty Ltd (HealthEngine) for misleading and deceptive conduct relating to the sharing of consumer information with insurance brokers and the publishing of patient reviews and ratings (08 August 2019).  More... 

Clean Energy Regulator investigation leads to jail for solar installer
A Brisbane plumber was sentenced on August 5 2019 to four and a half years in jail by the Brisbane District Court after pleading guilty to one charge of fraud and production of false and misleading documents that falsely claimed he had installed more than 400 solar heat pumps (07 August 2019).  More... 

Practice and regulation

Why privacy matters - concealed data practices and competition law
Katherine Kemp's new research paper.  More...

Keeping up with the competition: global trend to demand response
Dan Cass; The Australia Institute: 06 August 2019
This paper outlines how the world’s major electricity markets are opening up to demand response competition, which will benefit consumers with lower prices and help maintain reliability.  More...

Current Senate Inquiries July 2019 - Environment and Communications Legislation Committee
Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019

ACCC Digital Platforms Inquiry
The report contains 23 recommendations, spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms. Before a detailed Government response is provided a further consultation process will take place. It will run for 12 weeks, after which the Government intends to release its response (by the end of 2019).
See the Treasurer's media release.
See also ACCC media release on the final report.
Further details to follow on Digital Platforms page.

Cases

Australian Competition and Consumer Commission v CLA Trading Pty Ltd trading as Europcar [2019] FCA 1262
CONSUMER LAW – pecuniary penalties – admitted contraventions of s 55B(1) of the Competition and Consumer Act 2010 (Cth) – excessive payment surcharges imposed over period of months – course of conduct principle – appropriateness of agreed declarations and orders – principles relevant to appropriate penalty – knowledge of senior management – need for specific deterrence - Australian Securities and Investments Commission Act 2001 (Cth) ss 12BG, 12DA, 12DB; Competition and Consumer Act 2010 (Cth) ss 55B, 76; Crimes Act 1914 (Cth) s 4AA

Australian Securities and Investments Commission v Westpac Banking Corporation (Liability Trial) [2019] FCA 1244
CONSUMER LAW – alleged contraventions of s 128 of National Consumer Credit Protection Act 2009 (Cth) – where respondent used automated system for conditional approval of home loans – where respondent calculated proposed repayments with principal amortised over life of interest only loan – whether respondent made assessment of unsuitability – whether assessment of unsuitability requires direct comparison of declared living expenses against loan repayments – whether assessment of unsuitability requires assessment by reference to repayments due after interest only period
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG; National Consumer Credit Protection Act 2009 (Cth) ss 125, 128, 129, 130, 131, 132, 133

Elevate NSW Pty Ltd v Canada Bay Private Hospital Pty Ltd [2019] FCA 1248
CORPORATIONS – application to set aside a statutory demand under s 459H(1)(b) of the Corporations Act 2001 (Cth) – offsetting claims for misleading or deceptive conduct, conversion and detinue, and breaches of contract – whether the evidence of loss is sufficient to meet the threshold for establishing an offsetting claim
TRADE PRACTICES – claim of misleading or deceptive conduct by silence or failure to disclose – whether knowledge of the matter that has not been disclosed is necessary for the claim to be established
Competition and Consumer Act 2010 (Cth) sch 2 s 236; Corporations Act 2001 (Cth) ss 440D, 459G, 459H
Trade Practices Act 1974 (Cth) s 52; Private Health Facilities Regulation 2017 (NSW)

Australian Competition and Consumer Commission v Mitolo Group Pty Ltd [2019] FCA 1257
CONSUMER LAW – unfair contract terms– where respondents entered into small business contracts with potato growers - where ACCC alleged that certain terms of the contracts were ‘unfair’ within the meaning of s 24 of the Australian Consumer Law –where the first respondent entered into contracts with potato growers which did not specify a method or formula to determine the price to be paid to the grower or specify whether the price would be determined before or upon the delivery of the produce –where the ACCC alleged that the first respondent thereby contravened cll 12 and 32 of the Competition and Consumer (Industry Codes - Horticulture) Regulations 2017 - where respondents reached agreement with ACCC in relation to proposed declarations, injunctions, a pecuniary penalty and a compliance program - principles relevant to making agreed orders and declarations including as to the appropriate penalty – appropriateness of agreed declarations, injunctions, pecuniary penalty and compliance program
Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth)
Crimes Act 1914 (Cth); Competition and Consumer (Industry Codes – Horticulture) Regulations 2017
Trade Practices (Horticulture Code of Conduct) Regulations 2006

ACME Properties Pty Ltd v Perpetual Corporate Trust Limited as trustee for Braeside Trust [2019] FCA 1189
CONTRACT – intention to create contractual relations – offer to lease commercial premises – where offer document was signed by both parties – where offer document was expressed to be subject to formal approval of the landlord (to be given or withheld in its absolute discretion), and execution of all legal documentation by the landlord and tenant – whether the offer document constituted a binding agreement to lease
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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Howard Rapke

Howard Rapke

Managing Partner

Melbourne

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Ian Robertson AO

Ian Robertson AO

National Managing Partner

Sydney

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Paul Venus

Paul Venus

Managing Partner

Brisbane

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