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Inside track: Competition & Consumer

24 May 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Jump Swim ordered to pay penalties of $23 million and Ian Campbell ordered to pay compensation
The franchisor Jump Loops Pty Ltd (in liquidation) has been ordered to pay penalties of $23 million for making false or misleading representations and wrongly accepting payments from franchisees, in proceedings brought by the ACCC (20 May 2021).  More...

‘Puffed up IPO’: Two class action law firms investigating Nuix
Sydney-based firm Quinn Emanuel and Melbourne’s Phi Finney McDonald are both actively investigating Nuix, with lawyers preparing to build a case around misleading and deceptive conduct or breaches of continuous disclosure obligations (19 May 2021).  More...

Australia’s timeshare industry accused of trapping people into long-term contracts
Choice has accused the timeshare holiday industry of predatory sales tactics and trapping people into unfair long-term contracts in a wide-ranging complaint lodged with the corporate regulator. It called on ASIC to prosecute timeshare operators who break the law and investigate the industry over allegations of misleading and deceptive conduct by salespeople and breaches of anti-hawking laws (18 May 2021).  More...

Rex offers cheap tickets on Canberra-Melbourne route in Qantas price battle
Rex Airlines has opened a new, more aggressive front in its price war with Qantas by adding the Canberra-Melbourne route at $69 one way. Rex said Qantas has perfected the art of price gouging, ripping off passengers with sky-high fares on a route with no competition to keep it honest. He noted that the public service has an obligation to choose the cheapest fare (18 May 2021).  More...

Pilbara Ports Authority retains strong iron ore exports
The Australian Bureau of Statistics reported iron ore accounted for 39 per cent of Australia’s March exports at a record $14 billion. According to Reuters, regulators in Shanghai and Tangshan have warned local steel companies against price gouging and false market information following the surge in prices (17 May 2021).  More...

Listed gym giant Viva Leisure’s looming legal stoush
One of the country’s biggest gym and health club chains, Viva Leisure, is facing an uprising from dozens of franchisees amid claims of unconscionable and unfair conduct (17 May 2021).  More...

Funeral insurer engaged in misleading conduct: AFCA
The Australian Financial Complaints Authority has ruled against Aboriginal Community Benefit Fund (ACBF) in two separate disputes lodged against the funeral insurer. In the two complaints, ACBF was accused of engaging in misleading and deceptive conduct to sell its funeral policies to vulnerable consumers, particularly those from the Indigenous community (17 May 2021).  More...

OFT turns up the heat on air con non-supplier
A Calamvale electrician has been ordered to pay more than $11,000 in fines and compensation following an investigation by the Office of Fair Trading. Samuel James Goodwin, who traded as Turned On Electrical and Air Conditioning, was found guilty of two breaches of the ACL by accepting money and failing to supply goods and services within a reasonable time, and by making false representations of goods and services he provided (14 May 2021).  More...

ACCC takes action over alleged attempted cartel for National Gallery of Australia tender
The ACCC has instituted civil proceedings in the Federal Court against Delta Building Automation Pty Ltd and its sole director, Timothy Davis, for involvement in an alleged attempt to rig a bid in connection with a tender conducted by the National Gallery of Australia in Canberra (13 May 2021).  More...

Telstra to pay $50m penalty for unconscionable sales to Indigenous consumers
The Federal Court ordered that Telstra pay $50 million in penalties for engaging in unconscionable conduct when it sold mobile contracts to more than 100 Indigenous consumers across three states and territories, in proceedings brought by the ACCC. “The $50 million penalty imposed against Telstra is the second highest penalty ever imposed under the Australian Consumer Law (13 May 2021).  More...

NIB to continue to notify consumers of health insurance changes which increase out-of-pocket expenses
The ACCC and NIB Health Funds Limited (NIB) have agreed to the ACCC’s Federal Court proceedings against NIB being discontinued after NIB committed to continue to provide advance notice to its members of policy changes which are likely to result in higher out-of-pocket expenses for consumers (11 May 2021).  More...

Practice and Regulation

ACCC to scrutinise dairy code compliance as 1 June deadline approaches
The ACCC is urging dairy farmers and processors to be aware of their rights and obligations under the Dairy Code of Conduct. The mandatory code requires most dairy processors to publish standard form milk supply agreements to cover all the circumstances in which they intend to purchase milk in the coming financial year on their websites by 1 June (13 May 2021).
NOTE: The ACCC has published information on its website, including a fact sheet for farmers, to help parties understand their rights and obligations under the code.

ACCC seeks leave to appear in Epic v Apple appeal
The ACCC has sought leave to appear as ‘amicus curiae’ or as non-party in Epic’s appeal to the Full Federal Court against the Court’s decision to stay Epic’s proceedings against Apple.
Epic has alleged Apple engaged in anti-competitive conduct in relation to the App Store. Apple sought to stay proceedings on the ground that an agreement between them required disputes to be determined in California. Justice Perram granted the stay in April. Epic lodged a notice of Appeal on 14 April. A hearing is scheduled for 9 June 2021.

ACCC Facebook advertisements
Closes 1 September 2021 Opened 4 May 2021
The ACCC is aware of advertisements on Facebook about cryptocurrency products featuring the name or image of an Australian public figure. These advertisements might look like articles or posts in your Facebook newsfeed. We are concerned that the advertisements may be false or misleading.
If you see one of these advertisements on Facebook, please take a screenshot and submit it to the ACCC.

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 18 March 2021 the Senate agreed: That the resolution of appointment of the Select Committee on Financial Technology and Regulatory Technology be amended as follows: That the committee present its final report on or before 30 October 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.


Australian Competition and Consumer Commission v Campbell (No 3) [2021] FCA 528
CONSUMER LAW – application for remedies under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) – contraventions of ss 18, 29(1)(g), 36(3) and 36(4) of the Australian Consumer Law – where the respondents sold franchises to consumers representing that those franchises would be operational within 12 months, and received payments from franchisees on that basis, but in most instances did not supply a franchise within that period or at all – where the contravening conduct caused substantial loss to franchisees – where the first respondent is in liquidation and the third respondent has limited financial resources – where the parties have jointly filed statements of agreed facts and admissions – where the applicant and third respondent have agreed penalties and filed joint submissions in support of agreed penalties – where the first respondent does not oppose the orders sought by the applicant – consideration of the relevant principles to theassessment of pecuniary penalties, non-party consumer redress orders, declaratory and injunctive relief
STATUTORY INTERPRETATION – proper construction of s 227 of the Australian Consumer Law – meaning and effect of the requirement to give preference to making an order for compensation – whether orders proposed by the applicant satisfy that requirement
Competition and Consumer Act 2010 (Cth) ss 80, 137H; Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 4, 18, 29(1)(g), 36(3), 36(4), 224, 227, 232, 233, 239, 240(1), 240(3).

Australian Competition and Consumer Commission v Telstra Corporation Limited [2021] FCA 502
CONSUMER LAW – admitted contraventions of s 21 of Australian Consumer Law – whether agreed pecuniary penalty appropriate having regard to all relevant circumstances – consideration of relevant matters in determining amount of pecuniary penalty – declaratory relief and penalties awarded in terms sought by parties pursuant to s 244 of the ACL
Competition and Consumer Act 2010 (Cth), s 21; Evidence Act 1995 (Cth); Federal Court of Australia Act 1976 (Cth).

State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522
STATUTORY INTERPRETATION – Telecommunications Act 1997 (Cth) Sch 3 Pt 1 Div 4 cl 7 – “maintenance activity” – whether maintenance included the installation of a new fibre optic cable in a conduit or duct owned by a third party – whether a carrier which is a “stranger” to original facilities owned by other carriers can be said to “maintain” those original facilities – extended statutory definition of “maintenance”.
In respect of “maintenance” the State particularly relied on the observations of Kunc J in Pipe Networks at [96]. In that case NBN Co alleged that Pipe Networks engaged in misleading and deceptive conduct by representing that Sch 3 to the Telecommunications Act empowered Pipe Networks to install certain telecommunications equipment.

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