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Inside track: Competition & Consumer

26 May 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Spotless settles class action for $95 million
Investors in Downer Group subsidiary Spotless have reached a $95 million settlement of a class action against the facility services business in the alleged Spotless had engaged in misleading and deceptive conduct when it provided its FY16 Guidance on 25 August 2015 (22 May 2020).  More...

Holden agrees to negotiate in good faith
The Morrison Government welcomes GM Holden’s guarantee to negotiate with car dealers in good faith, after its decision to withdraw from the Australian market. ACCC has found that GM Holden was placing undue pressure on dealers to accept their compensation package by 31 May. The ACCC found this deadline was ‘unnecessary and unfair’ and has advised it was preparing for court action had Holden not changed its position (22 May 2020).  More...

Crunch time for peanut butter as battle heads to High Court
A long-running and costly legal stoush over peanut butter jars is bound for the High Court, after US food giant Kraft Heinz confirmed it would take the matter to Australia's highest court. . Both parties counter-sued one another in the Federal Court for misleading and deceptive conduct under competition and consumer law (20 May 2020).  More...

Views sought on issues for draft news media and digital platforms bargaining code
The ACCC is seeking views to inform its work on developing a new draft mandatory code that will address bargaining power imbalances between Australia’s news media businesses and Google and Facebook (19 May 2020).  More...

Police COVID-19 efforts boosted by new cybercrime officers
Additional police officers have been allocated to the Cybercrime Squad as COVID-19 restrictions see a rise in cybercrime reports. Eight additional investigators have been added to the Cybercrime Squad following a noticeable increase in online scams, including vendors selling personal protective equipment for vastly elevated prices (14 May 2020).  More...

MMS Australia fined $151,200 for alleged unlawful advertising
The TGA has issued twelve infringement notices totalling $151,200 for the alleged unlawful advertising of Miracle Mineral Supplement and other medicines. The TGA is concerned about the harmful effects that can be caused by the ingestion of MMS, and has published an updated safety alert to warn consumers (13 May 2020).  More...

Queensland Yoghurt pays penalty for failing to disclose gelatine ingredient
Queensland Yoghurt Company Pty Ltd (QYC) has paid a penalty of $12,600 after the ACCC issued it with an infringement notice for allegedly misleading consumers by omitting gelatine as an ingredient in some of its yoghurt products (15 May 2020).  More...

Court orders $6m in penalties against Bupa and compensation for consumers
The Federal Court has ordered that Bupa Aged Care Australia Pty Ltd (Bupa) pay $6 million in penalties for making misleading representations and wrongly accepting payments for extra services not provided or only provided in part to residents at 20 aged care homes (12 May 2020).  More...

Guidelines will assist industry to comply with new laws
The laws prohibit electricity retailers from keeping consumer and small business prices unnecessarily high when costs fall, and prohibit generators from inflating wholesale prices or blocking access to critical contracts, which could increase retail prices. The laws will form part of the Competition and Consumer Act and come into effect on 10 June 2020 (11 May 2020).  More...

Practice and regulation

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 (11 May 2020).  More...

News media bargaining code: Concepts paper
The ACCC has released a concepts paper seeking views on each of the issues to be covered in a mandatory code to address bargaining power imbalances between Australian news media business and each of Google and Facebook. Responses are due by 5 June 2020. View the concepts paper, (19 May 2020). 

Container Refund Scheme - price monitoring review: issues paper
While the Queensland Government anticipates that beverage manufacturers will increase the price of beverages as a result of the scheme, this review was commissioned to ensure consumer interests are protected from unjustified pricing behaviours. Submissions are due by close of business 12 June 2019. They can be lodged online or via post here.  More...

Cases

‘Cash Bazaar Pty Ltd v RAA Consults Pty Ltd (No 2) [2020] FCA 636
CONSUMER LAW – misleading or deceptive conduct – pre-contractual representations – alleged contraventions of s. 18 of the Australian Consumer Law – where first applicant entered into franchising agreements allegedly in reliance on representations made to its sole director and shareholder (the second applicant) with respect to guaranteed income and capital growth – where alleged that first respondent would pay the guaranteed income – where first applicant entered into a shareholders agreement with the second respondent allegedly in reliance on representations made to the second applicant with respect to guaranteed payments – where representations allegedly made by various officers and employees of the first respondent – where first and second respondents ceased making payments to the first applicant – where price of the franchising agreements did not increase – identification of the true nature of the representations – whether representations were as to future matters within the meaning of s. 4 of the Australian Consumer Law – whether respondents had reasonable grounds for making the representations
Competition and Consumer Act 2010 (Cth.) Sch. 2, Australian Consumer Law ss. 2, 4, 18, 236
Corporations Act 2001 (Cth.) s. 1305; Trade Practices Act 1974 (Cth.) s. 51A (repealed)

Australian Competition and Consumer Commission v BlueScope Steel Limited (No 2) [2020] FCA 625
PRACTICE AND PROCEDURE – application to amend originating application to add a new claim for declaratory relief and pecuniary penalty under s 76 of the Competition and Consumer Act 2010 (Cth) – whether claim for pecuniary penalty is time-barred under s 77(2) of the Competition and Consumer Act 2010 (Cth) – application of rr 8.21 and 1.32 to 1.35 of the Federal Court Rules 2011 –whether new claim for relief arises out of the same facts, or substantially the same facts, as those already pleaded to support an existing claim for relief – where conduct the subject of the new claim for relief allegedly occurred partly within and partly outside limitation period – leave granted for applicant to amend originating application – date from which amendment to take effect – no order made as to costs. Competition and Consumer Act 2010 (Cth)

Australian Competition and Consumer Commission v Bupa Aged Care Australia Pty Ltd [2020] FCA 602
CONSUMER LAW – admitted contraventions 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 – orders made in accordance with parties’ proposal
Aged Care Act 1997 (Cth); Competition and Consumer Act 2010 (Cth) Sch 2 ss 18(1), 29(1)(b), 29(1)(g), 36(3), 36(4), 224(2) 

Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604
CONSUMER LAW - misleading or deceptive conduct - express oral representations regarding involvement of party in proposed leases - certain representations found to have been made - reliance on representations - whether representations misleading or deceptive - involvement in misleading or deceptive conduct - causation of loss or damage - applicant not pursuing 'no transaction' or 'different transaction' case - whether detriment or disadvantage required - whether counterfactual required to establish causation - whether entry into contractual relations amounts to loss or damage - whether misleading or deceptive conduct had continuing operative effect - no loss or damage caused by misleading or deceptive conduct
CONSUMER LAW - misleading or deceptive conduct - non-disclosure of deeds of assignment - terms of deeds falsified letter - whether omission to disclose deeds misleading or deceptive - whether applicant would have been able to terminate leases if the deeds had been disclosed - whether respondents engaged in misleading conduct involving non-disclosure
LANDLORD AND TENANT - equitable leases - assignment of equitable interest in equitable lease - requirement of delivery of deeds - whether deeds implemented - deeds held to be legally effective - whether clause in leases prohibiting assignment applies to equitable assignment - construction of leases - clause held to prohibit assignment in equity
CONTRACT - prohibition on assignment - whether fundamental breach or repudiation - application of general contractual principles to leases - privity of estate between lessor and lessees not displaced by equitable assignment - breach not going to root of contract - fundamental breach or repudiation not established - application dismissed
Acts Interpretation Act 1901 (Cth) s 15AC; Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) ss 2, 13, 14, 18, 236, 237, 243; Competition and Consumer Act 2010 (Cth) s 139B; Evidence Act 1995 (Cth) ss 50, 59, 81, 87, 135, 140, 142; Trade Practices Act 1974 (Cth) ss 52, 75B, 82, 87; Fair Trading Act 2010 (WA) s 111 

Canon Finance Australia Limited v Reliance Medical Practice Pty Ltd & Ors (No 7) [2020] NSWSC 554
CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Australian Securities and Investment Commission Act 2001 –  misleading  and  deceptive conduct  – persons involved in the contravention – contract for IT equipment, software and services – financing of contract by commercial lease - oral representations made about efficiency of IT system to be supplied – contract repudiated – hypothetical question of misrepresentation – misrepresentation a question of fact – measure of loss 

Oxygen Funding Solutions Pty Ltd v Dick-Telfar [2020] NSWSC 582
(1) Judgment for the plaintiffs in the sum of $2,351,780. Defendants have not made out their claims for relief under the cross-claim since they have established neither equitable fraud, nor that the plaintiffs’ conduct was unconscionable within the meaning of that term under s 12CA of the ASIC Act or any relevantly causative  misleading  or  deceptive conduct  by the plaintiffs.
CONTRACTS — Remedies — money claim made under loan agreement — whether attempts to discharge debt by refinancing were frustrated by conduct of the lenders
CONTRACTS — Unconscionable conduct — Australian Securities and Investments Commission Act 2001 (Cth) s 12CA — whether interest rates in the loan agreement unconscionable

Legislation

Commonwealth

Telecommunications Legislation Amendment (Competition and Consumer) Bill 2019
Finally passed both Houses 14 May 2020
Introduced with the Telecommunications (Regional Broadband Scheme) Charge Bill 2019, the bill amends the: Competition and Consumer Act 2010 and Telecommunications Act 1997 in relation to: Layer 2 bitstream services; and statutory infrastructure providers; Competition and Consumer Act 2010 and Telecommunications Act 1997 and two legislative instruments in relation to local access lines; Competition and Consumer Act 2010, Telecommunications Act 1997 and Telecommunications (Consumer Protection and Service Standards) Act 1999 in relation to funding of fixed wireless broadband and satellite broadband; and National Broadband Network Companies Act 2011 to require NBN Co to provide certain data about premises connected, or due to be connected, to the NBN. Also repeals four declarations.

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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