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Inside track: Competition and Consumer Law

29 October 2018

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Government extends term of the ACCC Chair
The Coalition Government has extended Mr Rod Sims' term as Chairman of the Australian Competition and Consumer Commission (ACCC) until 1 August 2022 (25 October 2018).  More... 

Ugg boot retailer pays penalties for alleged false Australian-made representations
Ozwear Connection (Ozwear) has paid penalties totalling $25,200 after the ACCC issued two infringement notices for alleged false country of origin representations made about its “Classic Ugg” footwear range (24 October 2018).  More... 

Court finds that Birubi Art misled consumers over fake Indigenous Australian art
The Federal Court has found that Birubi Art Pty Ltd (Birubi) made false or misleading representations that products it sold were made in Australia and hand painted by Australian Aboriginal persons, in breach of the Australian Consumer Law (24 October 2018).  More... 

High Court refuses the ACCC special leave to appeal Pfizer decision
The High Court has dismissed the ACCC’s application for special leave to appeal the Full Federal Court decision in a case against Pfizer Australia Pty Ltd (Pfizer). The Full Federal Court had found that Pfizer took advantage of its substantial market power, but didn’t accept the ACCC’s argument that Pfizer had acted for the purpose of substantially lessening competition or deterring or preventing competitors from competing (19 October 2018).  More... 

AFT Pharmaceuticals has engaged in false and misleading conduct in its Maxigesic advertising, the Federal Court has found
The Court found that AFT, the manufacturer of the pain relief brand Maxigesic, has engaged in false and misleading conduct in contravention of the Australian Consumer Law when advertising the product. The judge was satisfied that there was not an adequate scientific foundation for the representations (19 October 2018).  More... 

Fair Trading watchdog launches court action against plumbing group
The ACT Fair Trading Commissioner has launched Supreme Court action against a Canberra plumbing group, alleging it published misleading advertising. Commissioner David Snowden is alleging that Your Local Plumbing Group Co Pty Ltd published advertisements under different business names, creating the impression the businesses were separate when in fact they were linked (18 October 2018).  More... 

High Court refuses Yazaki $46 million appeal
The High Court has dismissed a special leave application by Japanese company Yazaki Corporation to appeal the Full Federal Court’s decision ordering Yazaki to pay $46 million in penalties for cartel conduct. The High Court’s decision not to hear this appeal finalises this litigation and means the record penalties of $46 million imposed on Yazaki stand (19 October 2018).  More... 

ACCC Annual Report 2017-18
The ACCC secured nearly $170 million in penalties for breaches of competition and consumer law in the 2017-18 financial year, according to its latest annual report found here. The ACCC continued to advocate higher penalties for breaches of competition and consumer laws, and recorded its highest penalty in the Yazaki cartel case of $46 million (18 October 2018).  More...  

Kebab shop pair fight Westfield Carousel over ‘misleading and deceptive conduct’
The directors of a takeaway kebab shop are suing the owners of Westfield Carousel, claiming the centre’s apparent success was exaggerated during lease negotiations. In a recently filed Supreme Court writ, the Kebabbque owners accuse Scentre Group, which owns Westfield in Australia and New Zealand, of “misleading and deceptive conduct” (18 October 2018).  More... 

Bowen Hills motor dealer fined $6,500
A Brisbane motor dealer was ordered to pay almost $7,800 after charges were brought by the Office of Fair Trading (OFT) for making false representations when selling motor vehicles (17 October 2018).  More... 

Optus misled customers over ‘Direct Carrier Billing’ charges
The ACCC has commenced proceedings against Optus, alleging it made false or misleading representations to consumers in relation to its third-party billing service known as ‘Direct Carrier Billing’ (DCB). Optus has admitted that it made false or misleading representations in contravention of the ASIC Act, and has agreed to apply jointly with the ACCC for orders from the Federal Court (17 October 2018).  More... 

ACCC identifies as fin services ‘competition champion’
A key parliamentary committee has accepted assurances from the Australian Competition and Consumer Commission (ACCC) that it can be the “competition champion” for the financial system (16 October 2018).  More... 

Stronger penalties required for franchising codes and UCT laws
In his speech, Mick Keogh recognised the importance of franchisees doing their due diligence including by seeking independent advice before investing in a franchise. Mr Keogh also updated delegates at the Convention about a potential ‘class exemption’ to allow small businesses, including franchisees, to negotiate collectively without having to seek the ACCC’s authorisation (14 October 2018).  More... 

Cases

Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595
CONSUMER LAW – whether respondent wholesaler engaged in conduct likely or liable to mislead or deceive potential purchasers by implying that five product lines were hand painted, or made, by an Aboriginal person and/or were made in Australia – where the place of origin of the products, Indonesia, was not disclosed– where all but one product line comprised objects of cultural significance to Aboriginal peoples – where no dispute as to the literal truth of express representations – scope of the surrounding circumstances to be taken into account in determining whether false or misleading representations were made –whether surrounding circumstances includes the way the products were presented in retail outlets by third parties, the characteristics of other products for sale in those outlets, and the products’ price placement vis a vis other products - where implied false or misleading representations upheld – finding that all the products breached s 18 and subs 29(1)(a) and (k), Australian Consumer Law – finding that boxed boomerangs, didgeridoos and message stones breached s 33 of the Australian Consumer Law.
CONSUMER LAW – discussion of the principles applicable to ss 19, 29 and 33 of the Australian Consumer Law – discussion of the principles applicable to implied representations.
CONSUMER LAW – identification of class of persons to whom the implied representations were made – where class included international tourists, interstate tourists, and those seeking to purchase a gift – where international tourists may have a low degree of familiarity with the Aboriginal art and cultural practices but would recognise the association between such objects and their artwork, symbols and designs, on the one hand, and Aboriginal art and culture, on the other hand.
EVIDENCE – whether contextual evidence of the retail environment in which the products sold admissible – where ACCC submitted context was confined to the products themselves, together with the images and representations made on the products and their packaging – where respondent had no control over manner in which products presented by retailers – whether evidence sufficient to establish the price differential and other aspects of the retail environment relied upon by the respondent. Competition and Consumer Act 2010 (Cth)

Reckitt Benckiser (Australia) Pty Limited v AFT Pharmaceuticals (AU) Pty Limited [2018] FCA 1552
CONSUMER LAW – whether respondent’s advertisements for analgesic drug contravened Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) – misleading or deceptive conduct – false or misleading representations – conduct liable to mislead as to nature or characteristics of goods – comparative advertising – whether representations conveyed – whether adequate scientific foundation for representations as to superiority of respondent’s analgesic over applicant’s competing analgesic, and over certain other analgesics – contraventions found.
CONSUMER LAW – cross-claim – whether applicant’s advertisements for analgesic drug contravened Australian Consumer Law – misleading or deceptive conduct – false or misleading representations – conduct liable to mislead as to nature or characteristics of goods – comparative advertising – whether representations conveyed – whether adequate scientific foundation for representation as to superiority of applicant’s analgesic over respondent’s competing analgesic – contravention found.
Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 29(1), 33; Therapeutic Goods Act 1989 (Cth) s 25; Therapeutic Goods Regulations 1990 (Cth) Sch 4

Collier v Telstra Corporation Ltd [2018] FCA 1569
PRACTICE AND PROCEDURE – application for leave to appeal an interlocutory judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – FCC Judge refused application to recuse himself on the basis of apprehended bias – whether a fair-minded lay observer might reasonably apprehend that the FCC Judge might not bring an impartial and unprejudiced mind to the resolution of the dispute – whether the FCC Judge was actually biased – leave to appeal refused.
Competition and Consumer Act 2010 (Cth) Sch 2 Chs 2, 3, Pts 3-5, 5-12, ss 18, 21, 22 ,24, 26, 27, 29, 34, 36, 37, 138A, 151, 156, 159, 168, 213, 228, 

Hoser v Sportsbet Pty Ltd [2018] FCA 1557
TRADE MARKS – whether the pleaded television commercial was a use by the respondent of “snake man” or “snakeman” as a trade mark.
CONSUMER LAW – whether the pleaded television commercial represented to adult consumers in Australia that the man depicted in the advertisement was “the snakeman” – whether the television commercial represented to adult consumers in Australia that there was a connection or association between the applicant and the respondent.
PRACTICE AND PROCEDURE – separate questions, pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) – whether if the answers to the three substantive questions was no, the originating application (as amended) should be dismissed, in whole or in part.
Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’) ss 18, 29; Trade Marks Act 1995 (Cth) ss 7, 17, 20, 120; Federal Court Rules 2011 (Cth) r 30.01.

Galati v Deans [2018] NSWSC 1600
CIVIL PROCEDURE – Application for security for costs – Relevant considerations – Where cross-claimant corporation admitted it would be unable to pay costs of cross-defendant but undertakings provided by two individuals to be responsible for costs of cross-defendant – Held not an appropriate case for the exercise of the discretion to order security – Application dismissed.
The claims:  direct liability for engaging in misleading or deceptive conduct by making representations that there would be no additional payments or third-party payments payable and no commission claimable or payable to any third party in conjunction with the Nomination Agreement; and by making a false or misleading representation concerning the price payable for land.

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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