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Inside track: Competition & Consumer Law

29 October 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

In the media

Myer class action fails in court
The Federal Court has ruled Myer will not need to pay damages in a class action brought by Amies Superannuation Fund trustee TPT Patrol, despite finding the retailer had engaged in misleading or deceptive conduct over a four-month period in FY15 (25 October 2019).  More... 

Aldi drops a number of charges against TWU
Discount retailer Aldi has dropped a number of charges in its Federal Court case against the Transport Workers Union (TWU) before hearings concluded in the Federal Court. The discount grocer is, however, still accusing the TWU of misleading and deceptive conduct (25 October 2019).  More... 

AAT unmoved by ATO website’s ‘poor use of language’
A taxpayer who attested to being misled by the “poor use of language” on the ATO’s website has had his submissions rejected by the AAT despite the tribunal acknowledging that a mistake would not be made under the updated web page (22 October 2019).  More... 

Flight Centre pays $252,000 in penalties for Christmas and Easter promotions
The ACCC had grounds to believe that these advertisements were liable to mislead, and breached the Australian Consumer Law because Flight Centre failed to disclose to consumers that redeeming the $250 voucher was subject to certain conditions (21 October 2019).  More... 

Views sought on Murray-Darling Basin water markets
The ACCC is calling on irrigators and other water market participants to share their views on the operation of water markets in the Murray-Darling Basin. The ACCC will also be using its compulsory information gathering powers to obtain a very detailed picture of trading activity in water markets since 2012 (17 October 2019).   More... 

Heating product distributor Bromic admits to resale price maintenance
Bromic Pty Ltd, a national distributor of outdoor heating products, has admitted to engaging in resale price maintenance when it introduced a ‘minimum advertised pricing’ policy. Bromic stopped referring to and enforcing the policy after April 2018 but did not take any steps to communicate to its retail distributors that the policy was no longer in effect (16 October 2019).  More... 

Target will address customer complaints about faulty PlayStations
The ACCC has accepted a court-enforceable undertaking from Target Australia Pty Ltd (Target) in which Target admits it may have breached the Australian Consumer Law by making false or misleading representations in its dealings with customers who purchased faulty Sony PlayStations (15 October 2019).  More...

Big W will address customer complaints about faulty Dyson appliances
The ACCC has accepted a court-enforceable undertaking from Woolworths Group Ltd trading as BIG W (Big W) in which Big W admits it may have breached the Australian Consumer Law by making false or misleading representations when dealing with customers who purchased faulty Dyson appliances (15 October 2019).  More... 

Practice and Regulation 

New Gift Card Laws
The Australian Consumer Law (ACL) has been amended to provide protections for gift card consumers across Australia. With some exemptions, the ACL will: require minimum three year expiry periods for gift cards; require gift cards to display expiry dates; and ban most post purchase fees on gift cards. These changes apply to gift cards  apply from 1 November 2019. Further information can be found in the Explanatory Memorandum to the Treasury Laws Amendment (Gift Cards) Act 2018 and the Explanatory Statement to the Treasury Laws Amendment (Gift Card) Regulations 2018.

Home loan price inquiry
On 14 October 2019, the Treasurer directed the ACCC to conduct an inquiry into home loan pricing. The Treasurer directed that the Inquiry cover the period from 1 January 2019. More...

Consumer Affairs Victoria:  Businesses to display all charges up front
Changes to the Australian Consumer Law will clarify prices for people shopping online. From 26 October 2019, businesses must include all charges in the advertised price of goods and services payable by a consumer. This includes charges for pre-selected options.  More... 


Bupa HI Pty Ltd v Chang [2019] FCAFC 180
HEALTH LAW — proper interpretation and application of Medicare Benefits Schedule — claim by private health insurer under the Australian Consumer Law against ophthalmologist and his service company in respect of allegedly overpaid amounts — primary judge dismissed insurer’s claim — appeal dismissed
CONTRACT — whether insurer formed a “reasonable opinion” that conduct of ophthalmologist “may adversely impact” insurer’s “goodwill, reputation or business” thus entitling it to “deregister” him from its “Gap Scheme” — primary judge made declaration that insurer had breached its contract with the ophthalmologist — appeal dismissed
Bupa had the evidentiary and persuasive burden of proving its  misleading  and  deceptive conduct  case, which was presented on an “all or nothing” basis as explained above. It follows, it cannot succeed as framed.

TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747
CORPORATIONS — representative proceeding — listed securities — continuous disclosure obligations — ASX listing rule 3.1 — failure to disclose material information to market — forecast of net profit after tax — absence of reasonable grounds — failure to correct forecast — concept of “information” under listing rules — concept of “awareness” under listing rules — contravention of s 674 of Corporations Act 2001 (Cth) —  misleading  or  deceptive conduct  relating to securities — contravention of s 1041H of Corporations Act – availability of market based or indirect causation theory — loss and damage 

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2019] FCA 1677
CONSUMER LAW —  whether, by terms upon which mobile, internet and home telephone service plans were offered on the respondent’s website, the respondent telecommunication provider engaged in  misleading  or  deceptive conduct  — reasonable or ordinary consumer — meaning of “prepayment” — whether respondent contravened ss 18(1), 29(1)(b) and (i), and 34 of the Australian Consumer Law — whether term of mobile, internet and home telephone service plans was unfair within the meaning of s 23 of the Australian Consumer Law — whether, within the meaning of s 24 of the Australian Consumer Law, contract term creates significant imbalance — whether term reasonably necessary to protect legitimate interests of respondent — whether term causes detriment to consumers of telecommunication services — application dismissed

Lake v GBST Holdings Limited [2019] QSC 253
Judgment for the plaintiff for damages totalling $2,225,205.04 plus interest subject to any variances for changes in exchange rates since the trial.
TRADE AND COMMERCE  —  COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION  —  CONSUMER PROTECTION  —   MISLEADING  AND DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS — PARTICULAR CASES — CONTRACTS GENERALLY — where communications were made by directors of the defendant company, GBST Holdings Limited, relating to share sales for the purpose of the plaintiff obtaining approval to sell shares and with respect to a proposal for entry into a lease for the benefit of the plaintiff – where the plaintiff subsequently sold shares in the defendant company and caused a subsidiary of the defendant company to enter into a lease for an apartment in which he and his family were to live – where as a result of the plaintiff’s entry into these transactions, the defendant company alleged that he had engaged in fundamental and serious breaches of his employment contract giving it the right to summarily terminate that contract – whether the communications occurred in the course of trade or commerce – whether the communications were  misleading  – whether the plaintiff relied on the communications – whether the plaintiff would not have proceeded with entering into the transactions if the alleged  misleading  or  deceptive conduct  had not occurred. Australian Consumer Law (sch 2 of the Competition and Consumer Act 2010 (Cth))

F.J. & P.N. Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236
CONTRACTS — Construction of contracts — Rural land — Option to purchase — Lease — Development works for almond farming rendered land unusable — ‘Crop compensation’ paid — Whether crop compensation payable under contractual documents — No entitlement to crop compensation under contract.
EQUITY — Estoppel by convention — Whether representations regarding crop compensation made — Evidence that crop compensation would be paid supported by objective circumstances and compelling inferences – No lack of clarity or precision in evidence — Representations made — Whether oral evidence of pre-contractual negotiations can found conventional estoppel — Retirement Services Australia RSA Pty Ltd v 3143 Victoria Street Doncaster Pty Ltd [2012] VSCA 134; (2012) 37 VR 486; Johnson Matthey Ltd v AC Rochester Overseas Corp [1990] 23 NSWLR 190 considered — Unnecessary to decide — Representations made in continuum of conduct between parties — Mutual assumption found — Conventional estoppel found.
EQUITY — Equitable estoppel — Promissory estoppel pleaded as positive right to crop compensation payments — Whether promissory estoppel has defensive character only — Saleh v Romanous [2010] NSWCA 274; (2010) 79 NSWLR 453; DHJPM Pty Ltd v Blackthorn Resources [2011] NSWCA 348; (2011) 83 NSWLR 728 considered — Not appropriate case in which to decide principle.
LIMITATION OF ACTIONS — Limitation of Actions Act 1958 s 27 — Whether payments by mistake — Payments not by mistake — Conventional estoppel — Any mistake discoverable by 2007 — Counterclaim for repayment of crop compensation statute-barred.
The judge described the ‘main issues to be resolved’ as follows: (c) Did AIL engage in  misleading  and  deceptive conduct  in breach of section 18 of the Australian Consumer Law, or act negligently and thereby cause loss and damage to Curran? (d) Is Curran entitled to damages for any loss suffered as a result of misleading  and  deceptive conduct  or negligent misrepresentation by AIL?

In the matter of AA Management Co Pty Limited [2019] NSWSC 1443
CORPORATIONS — Winding up — Statutory demand — Application to set aside demand because of genuine dispute — Dispute involving family companies — Prior proceedings settled by Deed of Settlement — Deed provided for payment of sum by sunset date to defendant from proceeds of sale of real property — “Best endeavours” clause — Property not sold — Demands served on eight family companies — Recovery proceedings simultaneously commenced against individual family members — Whether genuine dispute as to construction of Deed — Whether deed voidable or rescindable for  misleading  and  deceptive conduct  or misrepresentation — Genuine dispute made out — Demands set aside. Australian Consumer Law, ss 18, 243

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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Howard Rapke

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