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Inside track: Competition and Consumer Law

27 November 2018

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media 

ACCC not satisfied with proposed OxoPak marks
The ACCC is proposing to reject an application for four certification trademarks for certain biodegradable plastics by OxoPak Pty Ltd. OxoPak is seeking to register the marks as part of its certification scheme for plastic bags and other packaging materials that meet certain specified standards of oxo-biodegradability (22 November 2018).  More... 

Aurizon, Pacific National collusion case opens with pruned ACCC claim
The ACCC alleges that Aurizon and Australia's biggest freight train operator, Pacific National, breached section 45 and section 50 of the competition law in formulating a deal over the key rail bottleneck between Queensland and NSW (18 November 2018).  More... 

Honey investigation concludes due to testing uncertainty
The ACCC has concluded its investigation into allegations Capilano Honey Limited (Capilano) breached the Australian Consumer Law in relation to representations about its ‘Allowrie’ honey and other products. The ACCC is advised NMR testing is not yet reliable enough to determine whether honey is adulterated and therefore should not be used as a basis to support legal action (17 November 2018).  More...  

Record $18m fines for Consumer Law breaches
The sole director of a property spruiking business has been personally fined $6 million, and his company a further $12 million. According to the ACCC, which prosecuted the case, both set a new record for the size of a financial penalty handed down for breaching Australian Consumer Law (ACL) for an individual and a company, respectively (15 November 2018).  More...  More... 

“Vegan honey” manufacturer dodges prosecution
The nation’s competition watchdog will not prosecute a “vegan honey” manufacturer whose apple juice concentrate product was accused of being deliberately misleading (13 November 2018).  More... 

NBN users continue shift to higher speed plans
The ACCC’s report for the September quarter shows the number of NBN residential broadband connections rose from about 4.1 million last quarter (up almost 8.6 per cent). The ACCC will continue to monitor the evolution of the NBN broadband market to help consumers make an informed choices about broadband plans (13 November 2018).  More...  

Federal Court dismisses Obeid appeal against refusal to grant suppression order
The Federal Court has dismissed an application by Moses Obeid for leave to appeal against the Court's decision to refuse to grant a suppression order over part of its reasons for decision in an alleged bid rigging case. The Federal Court dismissed the ACCC's bid rigging proceedings, but the ACCC filed an appeal on 3 August 2018 (yet to be heard) (12 November 2018).  More... 

Practice and regulations 

ACCC discussion paper: Electricity monitoring
The ACCC has released a discussion paper relating to how it will conduct its new role of monitoring and reporting on supply of electricity in the National Electricity Market. Submissions are sought on three key areas. Submissions close 19 December. The first report is due to the Treasurer on 31 March 2019. See media release. View discussion paper.(19 November 2018)

Therapeutic Goods Advertising Code
The Therapeutic Goods Advertising Code (the Code) ensures that the marketing and advertising of therapeutic goods is conducted in a manner that promotes the quality use of the product, is socially responsible and does not mislead or deceive the consumer. On 1 January 2019, the Therapeutic Goods Advertising Code (No. 2) 2018 will take effect. The differences between the first code and the second code are summarised here

Digital radio multiplex transmission services in Canberra, Darwin and Hobart: Consultation and position paper
Australian Competition and Consumer Commission: 19 November 2018.
On 30 October 2018, the ACCC received three new access undertakings in relation to the commencement of digital radio services in Canberra, Darwin and Hobart. This consultation paper is designed to seek stakeholders’ views on the degree to which the undertakings meet the legislative requirements.  More... 

Cases

Director of Consumer Affairs Victoria v Melbourne South Eastern Real Estate Pty Ltd [2018] FCA 1763
CONSUMER LAW – admitted contraventions of consumer law by real estate agents regarding the advertising of properties for sale on the internet – underquoting of prices to potential purchasers including through use of “blind pricing” – whether orders proposed by consent appropriate in the circumstances – some amendments to proposed orders necessary – appropriate form of declaratory relief – some amendments necessary – pecuniary penalties – compliance program – public notice – costs.
Competition and Consumer Act 2010 (Cth), ss 18, 30; Evidence Act 1995 (Cth), ss 191, 191(2)(b)
Australian Consumer Law and Fair Trading Act 2012 (Vic), ss 18, 30, 224; Estate Agents Act 1980 (Vic), ss 29B, 47A, 47B, 47C

Australian Competition and Consumer Commission v We Buy Houses Pty Ltd (No 2) [2018] FCA 1748
CONSUMER LAW – misleading or deceptive conduct – contraventions of ss 18, 29(1)(f), 29(1)(g), 34 and 37 of the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth) arising out of respondents’ promotion and conduct of real estate investment seminar business found – enforcement and remedies – declarations – pecuniary penalties – disqualification order – compliance program – corrective advertising and adverse publicity order – findings of fact order.
Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 29(1)(g), 29(1)(f), 34, 37, 224(2), 232(1), 232(4), 237(1), 239(1) 246(2)(b), 248; Competition and Consumer Act 2010 (Cth) ss 5(1)(g), 5(1)(h), 137H; Federal Court of Australia Act 1976 (Cth) s 21; Trade Practices Act 1974 (Cth) s 76E. 

Chhabra v McPherson as Trustee for the McPherson Practice Trust [2018] FCA 1755
COPYRIGHT – infringement – co-ownership of copyright – copyright licence – whether licence by one co-owner granted with other co-owner’s consent – whether bare or contractual licence – whether licence revocable at will.
CONSUMER LAW – passing off – misleading or deceptive conduct – misleading or false representation of association – whether use of trading name or style and logos represented an association of one law firm with another.
Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth), ss 18, 29
Copyright (International Protection) Regulations 1969 (Cth), reg 4; Copyright Act 1968 (Cth), ss 10, 30, 35, 115, 120, 196, 197 

Australian Securities & Investments Commission v Westpac Banking Corporation [2018] FCA 1733
CONSUMER LAW – joint application for declarations of contravention and penalty by consent – whether conduct specified in proposed declarations and agreed statement of facts constitutes contravention – whether agreed facts sufficient to assess agreed penalty
National Consumer Credit Protection Act 2009 (Cth) ss 128, 129, 130, 166

Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701
CORPORATIONS – Pecuniary penalty – declarations of contraventions – compliance program – bank bill market – trading in prime bank bills – Bank Bill Swap Reference rate (BBSW) – bank accepted bill futures – interest rate swaps – cross-currency swaps – market manipulation – artificial price in traded BBSW referenced products – financial market – false or misleading appearance in a market – false or misleading appearance with respect to price for trading – unconscionable conduct – financial instruments referencing BBSW – non-disclosure of rate set trading practice to counterparties – statutory unconscionability – contraventions of the then s 12CC of Australian Securities and Investments Commission Act 2001 (Cth) – penalty imposed – declarations and other orders made. 

Flash Lighting Co Ltd v Australian Kunqian Energy Co Ltd [2018] VSC 711
CONTRACT – Sale of shares in company (U&D) that owned a coal mining tenement in Queensland – Vendors, two companies, FLC and ANB – Purchaser (KQ) a wholly owned subsidiary of a Chinese State Owned Entity(Yima) – Yima instructed KQ to purchase the shares from the two shareholders – Vendor (FLC) not paid agreed purchase price – Proceedings by FLC for payment of balance of sale price allegedly owed by KQ – Defence and counterclaim by KQ alleging that Yima and KQ misled and deceived by a fraudulent report on the coal resources of the tenement produced by a director of ANB – Price of the shares in U&D to be determined by Chinese valuer – Valuer used fraudulent report provided by director of ANB in reaching valuation of the shares – Whether Yima and KQ relied on the fraudulent report in approving the purchase of the shares in U&D at the price determined by the valuer – Whether provision of the fraudulent report constituted a breach of the share sale agreement – Whether breach of the share sale agreement led to any loss or damage to KQ.
MISLEADING AND DECEPTIVE CONDUCT – Claim under Competition and Consumer Act 2010 (Cth) and Fair Trading Act 1989 (Qld) that Yima being misled and deceived by the misleading and deceptive conduct constituted by the fraudulent report caused KQ to suffer loss and damage in buying shares for more than their worth – Claim by KQ for compensation under the Acts and for the damages to be set off against any moneys owed.
AGENCY – Whether the director of ANB acted as the agent of FLC in the sale by FLC of its shares in U&D in providing fraudulent report to Yima and the valuer.
AGENCY – Director of ANB acknowledged receipt of outstanding purchase price due to FLC – Whether director acting as agent for FLC – Whether FLC bound by actions of director of ANB.
RECIEPT AS A VOLUNTEER – Moneys transferred by KQ to U&D to be paid by U&D to FLC – Director of ANB, that provided fraudulent report, misappropriated moneys paid by KQ for the purchase of the shares from FLC – Director paid the misappropriated moneys to his former wife and former intimate friend – Proceedings by U&D to recover moneys misappropriated from former wife and former intimate friend.
BARNES v ADDEY CLAIM – Knowing recipient claim.

Contacts:
Melbourne

Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
E: howard.rapke@holdingredlich.com

Sydney
Ian Robertson, National Managing Partner
T: +61 2 8083 0401
E: ian.robertson@holdingredlich.com

Brisbane
Paul Venus, Managing Partner, Queensland
T: +71 7 3135 0613
E: paul.venus@holdingredlich.com

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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