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Inside track: Competition and Consumer Law

19 February 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Cryosite to pay $1.05m for 'gun jumping' cartel conduct
The Court held, by consent, that Cryosite engaged in cartel conduct when it signed an agreement in June 2017 to sell the assets of its private cord blood and tissue banking business to Cell Care with a clause requiring Cryosite to refer all customer enquiries to Cell Care before the sale was completed, and when it subsequently gave effect to that provision (13 February 2019).  More... 

Deloitte, EY, KPMG, PwC probed by ACCC over cartel conduct
The competition regulator is probing the big four consulting firms Deloitte, EY, KPMG and PwC over allegations the firms operate as a cartel, or in an anti-competitive manner, in the way they sell audit and consulting services (12 February 2019).  More... 

Regulation needed to save Australian journalism from Facebook and Google, watchdog says
The ACCC’s preliminary report recommended a powerful new authority to oversee the commercial activities of Google and Facebook. The production of news and journalism cannot be left entirely to market forces, and regulation is needed to curb the power of Facebook and Google, the competition regulator says (11 February 2019).  More...  

Court finds former car wash franchisor Geowash acted unconscionably
The ACCC has successfully prosecuted former hand car wash and detailing franchisor Geowash in the Federal Court for acting unconscionably, making false or misleading representations, and failing to act in good faith in breach of the Franchising Code of Conduct in relation to the sale and marketing of its franchises (11 February 2019).  More...  

Call takes off for airport transparency
The Productivity Commission Commissioner Paul Lindwall said the current form of economic regulation remained fit for purpose, but more scrutiny of Australia’s four busiest airports was justified to ensure prices paid by airlines and passengers did not lead to monopoly profits and using market power to charge excessive prices in the future”. The PC’s draft report can be accessed here (7 February 2019).  More... 

Optus fined $10 million for misleading customers
The Federal Court finds the company misled customers who unknowingly bought games, ringtones and other digital content via the telco's direct billing service. View the ACCC statement here (6 February 2019).  More... 

In practice and courts

Productivity Commission draft report: Economic regulation of airports
Sydney, Melbourne, Brisbane and Perth airports have market power in services provided to airlines. This draft report asserts that there is no reason for airport operators to become complacent — further scrutiny of some aspects of airports’ performance is warranted, and tailored reforms are needed to address specific areas of concern (06 February 2019).  More... 

ACCC discussion paper: Electricity monitoring
The ACCC has released a discussion paper relating to how it will conduct its new role of monitoring and reporting on supply of electricity in the National Electricity Market. The first report is due to the Treasurer on 31 March 2019. View discussion paper here

Initial Coin Offerings
This issues paper forms part of Treasury’s review into Initial Coin Offerings (ICOs). The Treasury invites interested parties to make submissions on any or all aspects of the issues raised in this paper by 28 February 2019. Feedback gathered during this process will inform subsequent advice to the Government. You can submit responses to this consultation up until 28 February 2019.  More... 

Cases

Australian Competition and Consumer Commission v Cryosite Limited [2019] FCA 116
COMPETITION – Cartel conduct – restricting or limiting supply – market sharing – contract containing a cartel provision – conduct giving effect to cartel provision – pecuniary penalty.
Competition and Consumer Act 2010 (Cth) ss 44ZZRD, 44ZZRJ, 44ZZRK, 76

Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106
CONSUMER LAW – False and misleading representation in contravention of s 12DB(1)(b) of the Australian Securities and Investment Commission Act 2001 (Cth) – where respondent did not adequately inform customers that they were automatically opted in to direct billing for third party content – where some customers unintentionally purchased third party content without knowledge or consent – where Optus applied charges to customer accounts despite awareness of this issue – principles relevant to appropriate penalty – appropriateness of agreed declaration and order for $10 million pecuniary penalty
Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth); Crimes Act 1914 (Cth); Fair Work Act 2009 (Cth); Trade Practices Act 1974 (Cth)

Key Logic Pty Ltd v Blue Groper Investments Pty Ltd [2019] FCA 63
CONSUMER LAW – Misleading and deceptive conduct – form of comparative advertising – misleading statements about competitor’s product – injunctions, declarations and corrective action ordered.
COPYRIGHT – Unauthorised use of photographs in comparative advertising – photographs given by one respondent to another for such use – personal liability of company directors for breach by company – authorisation of infringement by one respondent of another.
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law ss 18, 29(1)(a), 29(1)(g), 232, 247; Copyright Act 1968 (Cth) ss 36, 36(1A), 115(2), 115(3); Federal Court of Australia Act 1976 (Cth) ss 21, 37M, 37N

GM Global Technology Operations LLC v S.S.S. Auto Parts Pty Ltd [2019] FCA 97
CONSUMER LAW – Misleading or deceptive conduct – whether, in a letter of demand, there is a duty to disclose matters including particulars of the defence afforded by s 72 of the Designs Act 2003 (Cth) – that certain designs alleged to have been infringed had not been certified in accordance with s 73 of the Designs Act; that the designs had a maximum term of monopoly; and/or that the impugned parts were not “counterfeit” as alleged
COPYRIGHT – Application for relief from unjustified threats pursuant to s 202 of the Copyright Act 1958 (Cth) – whether discretion should be exercised not to grant relief for unjustified threats
Australian Consumer Law as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), ss 18, 29. 

Parker trading as On Grid Off Grid Solar v Switchee Pty Ltd trading as Australian Solar Quotes (No 2) [2019] FCA 79
CONSUMER LAW – Damages for contraventions of ss 18, 21 and 29(1)(h) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) – where respondent’s contraventions allegedly suppressed success of applicant’s solar panel installation business – whether damage proven – quantification of damage to business, through past hypothetical or loss of chance analysis.
Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 21, 29(1)(h), 236
Pursuant to s 236 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)), the respondent pay the applicant the sum of $15,000 for damage suffered by the applicant because of the conduct of the respondent in contravention of a provision of Chapter 2 of the Australian Consumer Law. 

Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd & Ors (No 2) [2019] QDC 11
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – FALSE OR MISLEADING STATEMENTS – Where the plaintiffs entered into a franchise agreement for a Michel’s Patisserie to be located in Townsville – where the plaintiffs allege that oral and written representations were made on behalf of the franchisor which they relied upon – representations as to future matters – whether representations were misleading
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – FALSE REPRESENTATIONS – FALSE OR MISLEADING STATEMENTS – PUFFERY.
TRADE AND COMMERCE – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – NON-DISCLOSURES.
TRADE AND COMMERCE – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – RELIANCE - SIGNIFICANCE OF INDEPENDENT LEGAL ADVICE – RESPONSES OF NON-RELIANCE IN QUESTIONNAIRE.
TRADE AND COMMERCE – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – LOSS AND DAMAGE – NO TRANSACTION CASE.
TRADE AND COMMERCE – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT – COUNTERCLAIM- WARRANTIES.

RJB Wolfe Pty Ltd v Mornington Peninsula Eye Clinic Pty Ltd [2019] VSC 27
TRADE PRACTICES – Misleading or deceptive conduct – passing off – use of name ‘Mornington Peninsula Eye Clinic’ – established business called ‘Peninsula Eye Centre’ – whether defendants made false representation as to existence of a connection or affiliation with the business of the plaintiff – where business names use descriptive or functional terms – plaintiff had not established and maintained distinctive reputation in its business name – ophthalmologists, optometrists, general practitioners and patients are not likely to be misled into believing that practice of first defendant is associated with that of the plaintiff – Competition and Consumer Act 2010 (Cth) Sch 2 s 18. 

Contacts:
Melbourne

Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
E: howard.rapke@holdingredlich.com

Sydney
Ian Robertson, National Managing Partner
T: +61 2 8083 0401
E: ian.robertson@holdingredlich.com

Brisbane
Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613
E: paul.venus@holdingredlich.com

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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