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Inside track: Competition & Consumer

02 March 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Governments were misled by gas giants and Australians are all paying for it, argues ACCC boss
ACCC boss Rod Sims slams the gas industry, accusing it of misleading governments into approving massive gas export projects that have led to soaring power prices (27 February 2020).  More...

OTC derivative issuer AGM Markets engaged in unconscionable conduct
The Federal Court has found that AGM Markets Pty Ltd (AGM), OT Markets Pty Ltd (OT) and Ozifin Tech Pty Ltd (Ozifin) (the companies) engaged in systemic unconscionable conduct while providing over-the-counter (OTC) derivative products to retail investors in Australia (27 February 2020).  More...

Competition issues in upcoming 5G spectrum allocation
The ACCC has been asked to advise the Minister for Communications, Cyber Safety and the Arts, the Hon Paul Fletcher MP, on whether limits should be imposed in the auction in order to protect and promote competition (26 February 2020).   More...

Shareholders to sue Australia’s IOOF
Financial advisory firm IOOF is facing a class action from its backers, with shareholders seeking to recover losses related to alleged non-disclosures and potentially misleading and deceptive conduct. The lawsuit claims that this affected the purchase of IOOF shares between 1 March 2014 and 7 July 2015 (26 February 2020).  More...

ACCC 2020 compliance and enforcement priorities
Funeral businesses using their significant market power to bundle services and block new entrants to the market or engaging in unconscionable conduct, have made the sector a key enforcement focus for the ACCC in 2020 (25 February 2020).   More...

False and misleading conduct key issue for small businesses
Reports to the ACCC by small businesses about false and misleading conduct by other businesses including suppliers increased by eight per cent, totalling more than 900, in the six months to 31 December 2019. This issue continues to be the Australian Consumer Law issue most commonly affecting small businesses (24 February 2020).   More...

East coast gas prices appear too high and future supply is uncertain
The 2020 supply demand outlook in the east coast gas market has improved and LNG netback prices have decreased, but domestic prices remain high and there is significant uncertainty about future supplies, according to the Gas Inquiry 2017-25 Interim Report released by the ACCC (18 February 2020).  More...

Practice and Regulation 

Small business in focus report
ACCC: 24 February 2020
This twice-yearly report provides a summary of ACCC activities in the small business, franchising and agriculture sectors.   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 at Spectrum Competition Limits (26 February 2020). 

ACCC enforcement priorities 2020
In his annual speech to the Committee for Economic Development Australia (CEDA) speech, ACCC Chair Rod Sims set out the ACCC enforcement priorities for 2020. The speech can be found here and the media release can be found here (25 February 2020).  More...

Competition and Consumer Act (Compilation 124)
The latest compilation of the Competition and Consumer Act (Compilation 124) is now available; compiled 3 February and registered 18 February including amendments to Act No 120, 2019. Click here to view the Compilation 124.  More...

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 has closed 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 closed 28 February 2020. See ACCC, ‘Ocean liner shipping class exemption’ (class exemption register) and ACCC discussion paper - Ocean liner shipping class exemption

Cases

Australian Securities and Investments Commission v  AGM Markets  Pty Ltd (in liquidation) (No 3) [2020] FCA 208
CORPORATIONS – offer of derivative products – contracts for difference – margin foreign exchange contracts – offering to retail investors in Australia – financial product advice – financial services – personal product advice – general product advice – scope and application of ss 766B (1) to (4) of the Corporations Act 2001 (Cth) – obligation to act in best interests of client – scope and application of s 961B – obligation to provide advice appropriate to the client – application of s 961G – obligation to avoid conflict of interest – application of s 961J – warning concerning general advice – application of s 949A – Australian financial services licence – scope and application of s 912A(1) – failure to supervise authorised representatives – application of s 961L – agency – application of s 961K – misleading or deceptive conduct – misrepresentations – s 1041H of Corporations Act and ss 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) – statutory unconscionable conduct – scope and application of s 12CB of the ASIC Act – individual instances of unconscionable conduct – various contraventions established. 

In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd [2020] FCA 193
INTELLECTUAL PROPERTY— Trade marks — infringement — deceptive similarity — where marks used in relation to goods and services of the same description consist of a combination of words, two of which are identical, or that word combination with additional features some of which are similar — whether respective marks resemble each other — whether real or tangible danger that similarities in marks could deceive or cause confusion — where no evidence given by respondents on intention, whether inference from other evidence such as to call for an explanation — consequences of absence of explanation
CONSUMER LAW — Misleading or deceptive conduct — use of allegedly similar business names and trade marks in relation to the sale of fast food items and burgers in particular — where applicant a foreign company with no fixed or permanent business in Australia, whether applicant had or has a reputation in Australia — whether respondents intended to mislead or deceive consumers — whether respondents’ mark or marks adopted for the purpose of appropriating the reputation of the applicant — where no relationship between applicant and respondent and use of marks by respondent not authorised by applicant, whether respondents represented by the use of its trade names that their goods and/or services were provided by or associated with applicant or provided with the endorsement, approval, licence, authority or sponsorship of applicant
TORTS — Passing-off — where applicant a foreign company, whether applicant had or has a reputation in Australia — whether respondents represented that their business was the applicant’s or was endorsed by or had an association with the applicant — whether likelihood of damage
PRACTICE AND PROCEDURE — application for suppression or non-publication order — confidential commercially sensitive information — whether order necessary to prevent prejudice to proper administration of justice — appropriate duration of order
Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth) ss 2, 18(1), 236
Evidence Act 1995 (Cth) s 140(2)
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG(1)(a)
Trade Marks Act 1995 (Cth) ss 6, 7, 10, 17, 70, 120

Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWSC 130
CONSUMER LAW – Trade Practices Act 1974 (Cth) – ss 51(1), 82(1) – misleading and deceptive conduct – defendant structural engineer issued a certificate as to structural soundness of a proposed building which certificate was misleading or deceptive or likely to mislead or deceive – plaintiffs claim damages said to have been caused by this conduct because, after the project was delayed to remedy faulty construction undertaken by the builder in reliance on the certificate, a bank, which had lent them money, appointed receivers and sold their land – necessity for plaintiffs to prove, on the balance of probabilities, that the conduct complained of caused them loss – necessity for the plaintiff to prove that the conduct complained of was a material part of the bank’s motivation – plaintiffs fail to bring evidence of the bank’s motivation – plaintiffs failed to establish that the conduct complained of played any, or any sufficient, role in causing the bank to act – HELD: proceedings dismissed.

Norton Property Group Pty Ltd v Ozzy States Pty Ltd (in liq) [2020] NSWCA 23
CONTRACT - real estate agent buyers agreement - entitlement to commission - agreement between property developer and real estate agent - agent to acquire options over seven contiguous parcels of land - options acquired over some of land - options never exercised by developer - agent rendered invoices for commission as options acquired - some invoices paid - whether agent entitled to commission for obtaining options which were never exercised
MISLEADING AND DECEPTIVE CONDUCT - agent made demands for commission - whether demands misleading or deceptive contrary to s 18 Australian Consumer Law - whether demands were expressions of opinion of agent's legal entitlement

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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