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Inside track: Competition & Consumer

19 January 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

ACCC warns Google, Facebook laws are just the start
The Australian government announced legislation after an investigation it said showed the tech giants held too much market power in the media industry. Under the code, Google and Facebook will be subject to mandatory price arbitration if a commercial agreement on payment for Australian media cannot be reached (13 January 2021).  More...

Boeing to pay $2.5 billion settlement over deadly 737 max crashes
The Justice Department has announced that it has reached a deferred prosecution agreement with Boeing to resolve a charge of criminal conspiracy to defraud the FAA. Boeing admits to criminal misconduct for misleading regulators about the safety of the troubled jetliner, but the airplane manufacturer is not pleading guilty to the charge (08 January 2021).  More...

Northern Australian communities need more affordable insurance
Insurers are increasingly assessing and pricing risk, based on a home or building’s individual characteristics and address rather than at a postcode or regional level, especially for cyclone or flood risk. This has resulted in very significant premium increases for some households (04 January 2021).  More...

Class action launched against Monash IVF over non-invasive embryo testing
Danielle Bopping, of Canberra, has launched a class action in Victoria's Supreme Court accusing Monash IVF of breaching its duty of care by failing to tell her and others about the pitfalls of non-invasive pre-implantation genetic testing, which was being trumpeted by the fertility specialist (23 December 2020).  More...

Origin Energy pays penalty for allegedly misleading electricity customers
Origin Energy has paid a penalty of $126,000 after the ACCC issued it with an infringement notice for an alleged false or misleading representation in a price increase letter sent to residential electricity customers in Victoria (22 December 2020).  More...

ACCC takes Lorna Jane to court over 'Anti-virus Activewear' claims
The ACCC has instituted proceedings in the Federal Court against Lorna Jane Pty Ltd for alleged false or misleading claims about its ‘Anti-virus Activewear’, in breach of Australian Consumer Law. The claims, made over a wide range of media including on Instagram, on its website and in stores (21 December 2020).  More...

Practice and Regulation

ACCC Note: Screen scraping warnings not anti-competitive
The ACCC, responding to questions on notice as part of a parliamentary inquiry by the Senate Select Committee on Financial Technology and Regulatory Technology, said that “statements or warnings regarding potential security or safety risks associated with screen scraping and sharing passwords … does not appear to have the purpose or effect of substantially lessening competition.” On 24 April 2020, the reporting date was extended from the first sitting day in October 2020 to 16 April 2021.

Guidelines on Part XICA - Prohibited conduct in the energy market
These guidelines set out how the ACCC will interpret Part XICA of the Competition and Consumer Act 2010 (Cth) and they explain the general approach the ACCC will take in investigating alleged contraventions of Part XICA (prohibiting certain conduct involving retail pricing, financial contract markets and electricity spot markets).
Part XICA will be in effect from 10 June 2020 to 1 January 2026.  More...


Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229
CONSUMER LAW – misleading or deceptive conduct – entry into a series of pastoral leases in reliance on representations – relief of statutory rescission sought under s 243 of Australian Consumer Law (ACL) – whether appellant suffered or was likely to suffer loss or damage because of contravening conduct under ss 236 and 237 of ACL – whether case was advanced before primary judge –loss or damage not confined to economic loss – entry into contractual arrangement constituted loss or damage in particular circumstances – appellant suffered disadvantage as a result of entry into contract – appeal allowed – matter remitted to primary judge on question of relief EQUITY – rescission – differences between rescission at common law and in equity and statutory relief in the nature of rescission
Competition and Consumer Act 2010 (Cth) Sch 2, ss 236, 237, 243; Judiciary Act 1903 (Cth) s 23; Trade Practices Act 1974 (Cth) ss 82, 87

Australian Energy Regulator v Snowtown Wind Farm Stage 2 Pty Ltd [2020] FCA 1845
CONSUMER LAW – contravention by a wind farm of the National Electricity Rules (NER) – pecuniary penalties pursuant to s 44AAG of the Competition and Consumer Act 2010 (Cth) – declaration of a contravention of the NER – order for implementation of a compliance program.
Competition and Consumer Act 2010 (Cth) ss 44AE, 44AAG
National Electricity Law ss 2, 2AA, 15, 64
National Electricity Rules (Version 82) rr 4.15, 4.2.5, 4.4.1, 4.4.3, 5.1.3, 5.3.4, 5.3.4A, 5.3.7 and Schedule cll 5.1, 5.2, 5.2.2, 5.2.5, 5.3, 5.3a

Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846
ARBITRATION – stay of proceedings – s 7(2) of International Arbitration Act 1974 (Cth) (IAA) – arbitration agreement – proper law of agreement – scope of arbitration clause – US federal law – Californian state law – whether waiver of right to arbitrate – s 7(5) of IAA – choice of law concerning waiver – application of US law – application of Australian law – waiver established – stay refused
CONTRACTS – internet contracts – standard form contracts – formation of contract – notice of terms – choice of law for contract formation – lex forum – application of Australian law – “clickwrap” agreement – “browsewrap” agreement – “sign-in wrap” agreement – application of US law – actual or putative proper law of agreement – unfair contract terms – statutory unconscionable conduct – application of ss 21, 22, 23 and 24 of Australian Consumer Law (sch 2 to Competition and Consumer Act 2010 (Cth)) – arbitration agreement formed – no basis for statutory voidability – declaratory relief refused.
Competition and Consumer Act 2010 (Cth) ss 45, 46, 47; sch 2 (Australian Consumer Law) ss 21, 22, 23, 24, 25
International Arbitration Act 1974 (Cth) ss 2D, 3, 7, 8, 16, 39; sch 1; sch 2

Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 4) [2020] FCA 1811
CONSUMER LAW – adjudication of how Court should determine whether enrolment by the respondent of a consumer in an online course was the result of the unconscionable system of conduct or pattern of behaviour found to have existed in liability judgment (Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3) [2019] FCA 1982).
Australian Consumer Law ss 21, 237, 239
Higher Education Support Act 2003 (Cth) s 2-1, sch 1A cl 46AA
Trade Practices Act 1974 (Cth) s 87

Chatham v Coral Park Pre-Training & Breaking Pty Ltd [2020] VSC 814
CONTRACTS – dispute regarding construction of contract of sale – whether purchasers entitled to vacant possession – whether special condition embodied the common intention of the parties – whether special condition is void for uncertainty – special condition may be severed – Brew v Whitlock (No 2) [1967] VR 802 referred to – whether purchasers entitled to rescind – whether purchasers were ready, willing and able to perform their obligations under the contract – finding that purchasers not ready willing and able to perform.
CONSUMER LAW – misleading and deceptive conduct – whether vendor’s representation liable to lead purchasers into error – whether representation induced purchasers to enter contract of sale – Whether purchasers suffered loss by reason of vendor resiling from representation – finding that vendor’s misleading and deceptive conduct not the operative cause of purchasers’ loss.
PROPERTY LAW – Sale of Land Act 1962 (Vic) ss 32, 32C and 32K(1), (2) and (4) – whether section 32 statement contained false information or failed to provide required information – whether vendor required to disclose the details of a lease in section 32 statement – Krawkowski v Eurolynx Properties Ltd (1992) ATPR 41-168; Vouzas v Bleake House Pty Ltd [2013] VSC 534 referred to – whether purchasers entitled to rescind contract of sale – Fifty-Eighth Highwire Pty Ltd v Cohen [1996] VicRp 57; [1996] 2 VR 64 referred to – whether vendor acted honestly and reasonably – whether purchasers in substantially as good a position as if disclosure obligations had been complied with – finding that purchasers entitled to rescind – Property Law Act 1958 (Vic) s 49(2) – whether purchasers entitled to return of deposit – Simcevski v Dixon (No 2) [2017] 53 VR 357 referred to – finding that purchasers entitled to return of deposit.

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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