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Inside track: Competition & Consumer

21 July 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Kogan tax time promotion found to be false or misleading
The Federal Court has found online retailer Kogan Australia Pty Ltd (Kogan) breached the Australian Consumer Law by making false and misleading representations about a tax time sales promotion, in proceedings brought by the ACCC (17 July 2020).  More...

Medibank to pay $5 million in penalties for misrepresentations to members about benefits
The Federal Court has ordered that Medibank Private Limited trading as ‘ahm Health Insurance’ (Medibank) pay $5 million in penalties for making false representations to members about the benefits offered by their ahm health insurance policies, in breach of Australian Consumer Law (16 July 2020).   More...

ACCC proposes to allow supermarkets to continue cooperating on grocery supply
Supermarket operators will be able to continue working together until March 2021 to ensure the continued supply of food and groceries during the COVID-19 pandemic, under the ACCC’s draft determination (15 July 2020).  More...

CHOICE investigation: Mosaic Brands sold mislabelled, ineffective hand sanitiser
Testing at Australia's National Measurement Institute at CHOICE's request reveals that the 70%-alcohol label claim on the sample tested was far from the truth. Under Australian Consumer Law, it's illegal to sell products with misleading or deceptive label claims (15 July 2020).  More...

Tesla Autopilot deemed deceptive to consumers
Germany has become the first country to ban Tesla’s ‘Autopilot’ and ‘Full Self Driving’ labels, with both are viewed as “misleadingly prohibited” and providing false promises to customers (15 July 2020).  More...

BDO administrators take control of Wirecard’s Aussie arm
Finstro claims that it was misled by Wirecard into believing that the German-owned subsidiary could help it launch the card product by March 2019.Wirecard Australia is defending the claim, saying in court documents that Finstro was not able to issue a prepaid card because it did not hold a financial services licence (14 July 2020).  More...

Allianz add-on customers sue for 'hundreds of millions'
In the court papers filed, the firm accuses Allianz and its subsidiary of breaching the ASIC Act and Corporations Act. It says the insurer had engaged in “misleading or deceptive conduct and unconscionable conduct” to sell a range of car and motorcycle add-ons, citing evidence that was presented to the Hayne royal commission in 2018 (14 July 2020).  More...

Westpac faces potential class action over car loans that allowed dealers to inflate interest rates
Westpac is facing a potential class action on behalf of thousands of Australians who took out car loans under a since-banned scheme that allowed dealers to set exorbitant interest rates (14 July 2020).  More...

APRA required to improve transparency of music licensing and royalties
Collective management of copyright is generally more efficient than songwriters having to independently negotiate and collect royalties directly from each business that plays their songs,” ACCC Deputy Chair Mick Keogh said. However, APRA’s exclusivity provisions can mean higher fees for some businesses that want to play music (13 July 2020).  More...

Remote food price inquiry hears of rotten meat being refrozen and sold
Some of the poorest communities in Australia paying double prices for basic items like nappies and bananas, a parliamentary inquiry has heard. The high cost of basic shopping items in remote Australia is attributed to a range of factors including transport costs, lack of competition and sometimes unscrupulous behaviour (11 July 2020).  More...

TWU enlists NRFA over ACCC cartel warning
The Transport Workers’ Union’s (TWU’s) butting heads with the Australian Competition and Consumer Commission (ACCC) is showing few signs of being resolved amicably (10 July 2020).  More...

Private and public hospitals can continue cooperating on COVID-19
Allowing the private and public systems, and state governments, to coordinate will help ensure an efficient and effective allocation of hospital resources and services during the pandemic. For example, health providers would be able to discuss expected capacity and demand for services, jointly procure and distribute medical equipment and supplies, and share staff (09 July 2020).  More...

Colliers International (Victoria) Pty Ltd - Commencement of action
The Director of Consumer Affairs Victoria has started legal action against estate agency Colliers International (Victoria) Pty Ltd for alleged underquoting and making misleading representations about property sale prices (09 July 2020).  More...

Aussies 'misled' by white teeth claim
In papers filed with the Federal Court, Procter and Gamble says no reliable scientific data establishes the toothpaste removes yellow stains that have accumulated over the last 10 years. Each of Colgate's alleged misrepresentations about its product were misleading or deceptive or likely to mislead or deceive, P&G says. P&G says it lost sales, consumer brand equity and consumer confidence as a result of Colgate's teeth-whitening claims (08 July 2020).  More...  More...

Quantum Housing decision appealed over unconscionable conduct
The ACCC has filed an appeal to the Full Federal Court against a recent first instance decision of the Court, arguing the trial judge should have found Quantum Housing Group engaged in unconscionable conduct in in its dealings with investors regarding the National Rental Affordability Scheme (NRAS) in breach of the Australian Consumer Law (08 July 2020).  More...

Freedom Furniture pays penalties for allegedly misleading consumers about rights to refunds
Steinhoff Asia Pacific Pty Ltd (Steinhoff), trading as Freedom Furniture, has paid penalties totalling $25,200 after the ACCC issued it with two infringement notices for alleged false or misleading representations to customers about their consumer guarantee rights (07 July 2020).  More...

Megasave Couriers and Gary Bourne allegedly misled franchisees
The ACCC has instituted proceedings against franchisor Megasave Couriers Australia Pty Ltd (Megasave) in the Federal Court, alleging that it misled prospective franchisees with false or misleading promises of guaranteed minimum weekly payments and annual income if they purchased a Megasave courier franchise (06 July 2020).  More...

No evidence: ICA rejects 'price gouging' claims
The Insurance Council of Australia has pushed backed calls from consumer advocates for a national pricing monitor, saying there is no evidence to back up their claims of “price gouging" by insurers (06 July 2020).  More...

Practice and Regulation

ACCC: COVID-19 (coronavirus) information for business 2020
As a first step, we encourage businesses to contact customers wherever possible to advise them of how you are handling various circumstances. In doing so, businesses should continue to be mindful of their obligations under the Australian Consumer Law, which include:
to not mislead customers, including about what the customer is entitled to under their terms and conditions
to not act unconscionably when dealing with their customers
to not seek to rely on unfair terms in standard form contracts with customers.

ACCC consultations
Consumer Data Right - Energy rules framework consultation - closes 28 August
Consumer Data Right - Consultation on draft Rules - closes 20 July

COVID Collaboration & Competition Policy: Authorisation vs Forbearance as Crisis Responses
David Howarth & Harriet Alexander
Discussion of Competition and Consumer Protection Law issues
Australian Business Law Review, Vol 48, Part 2

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) (CCA) 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...


Australian Competition and Consumer Commission v Kogan Australia Pty Ltd [2020] FCA 1004
CONSUMER LAW – false and  misleading  statements and  misleading  and  deceptive conduct  under the Australian Consumer Law – where respondent advertised 10% coupon code discount for limited period – where respondent increased prices prior to promotion and decreased prices after promotion – promotion advertised through electronic direct marketing material and SMS messages – promotion advertised in parallel with two-price comparison promotions – statements in marketing material conveyed representation that consumers would receive genuine 10% discount by reference to the price at which goods were advertised for sale for a “reasonable period” before and after the promotion – representations false and  misleading  and respondent’s conduct  misleading  and deceptive in respect of a subset of products to which the coupon code promotion applied
Competition and Consumer Act 2010 (Cth) s 155, Sch 2, Australian Consumer Law (Cth) ss 18, 29; Evidence Act 1995 (Cth) s 140; Trade Practices Act 1974 (Cth)

Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141
CONSUMER CLAIM – defective motor vehicle – whether the Tribunal erred in determining whether the application was brought within the limitation period – meaning of when causes of action “first accrued” under the Fair Trading Act 1987 – claim for refund upon rejection of goods under the Australian Consumer Law (NSW) – entitlement to reject goods in “rejection period” – factors relevant to determining when rejection period ends
Australian Consumer Law (NSW); Civil and Administrative Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Consumer Claims Act 1998 (NSW) (repealed); Consumer Guarantees Act 1993 (New Zealand); Fair Trading Act 1987 (NSW); Trade Practices Act, 1974 (Cth)
The Appeal Panel held at [35] that the Tribunal needed to consider the time the first accrual of the following causes of action for loss and damage, in respect of a claim for a specified sum pursuant to s 79E(1)(a) of the FTA: (3) Under the now replaced sections of the FTA for damages under s 68 for contraventions of s 42 ( misleading  and  deceptive conduct ) and s 44(a) (false representation about quality or composition of goods) of the FTA.

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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