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Inside track: Competition & Consumer

03 March 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Rex flags regional services cuts citing ‘predatory’ Qantas behaviour
Regional Express (Rex) says it plans to terminate several NSW services as well as its Adelaide-King Island route after government subsidies end in March. In a statement to the ASX Rex deputy chairman John Sharp said Qantas Link’s launch of flights on existing monopoly routes was predatory behaviour aimed at making it a “less formidable competitor” when it launches its new Sydney-Melbourne (26 February 2021).  More...

ASIC sues NAB for unconscionable conduct and misrepresentations over account fees
ASIC has commenced proceedings in the Federal Court against National Australia Bank Ltd (NAB), alleging that NAB charged fees for making certain periodic payments when it was not entitled to under the bank’s contracts with its customers (25 February 2021).  More...

Freedom Foods hit with second class action over allegedly misleading shareholders
Freedom Foods and its auditors Deloitte have been hit with a second class action, with law firm Phi Finney Mcdonald alleging the company misled shareholders by improperly capitalised certain expenses and failed to write off certain inventory (23 February 2021).  More...

ACCC's 2021 enforcement and compliance priorities
Sales practices in Australia’s domestic travel sector, competition in aviation and the conduct of some caravan manufacturers will be among the ACCC’s compliance and enforcement priorities during 2021, ACCC Chair Rod Sims announced.
The speech, including the full list of the ACCC’s 2021 compliance and enforcement priorities, is on the ACCC website (23 February 2021).  More...

ACCC boss puts energy retailers on notice as wholesale prices fall
Competition regulator Rod Sims has warned energy retailers must pass on the sharp falls in wholesale electricity prices to their customers, as the watchdog sharpens its focus on policing the pricing of essential services in 2021 (23 February 2021).  More...

ATO: First criminal conviction for JobKeeper fraud
Mr Raed Saleh has been convicted in the Heidelberg Magistrates Court of three counts of making a false and misleading statement to the Commissioner of Taxation, in order to receive $6,000 in JobKeeper payments to which he was not entitled to (22 February 2021).  More...

CBA guilty of deceptive conduct
The Federal Court has found Commonwealth Bank of Australia made false or misleading statements and engaged in deceptive conduct on over 12,000 occasions. Justice Lee found that CBA breached financial services law 12,119 times when charging a rate of interest on business overdraft accounts substantially higher than what customers were advised (17 February 2021).  More...

Investors slam Frydenberg’s watering down of company laws
Mr Frydenberg said the bill makes clear that companies and their officers are not liable for misleading and deceptive conduct in circumstances where the continuous disclosure obligations have been contravened unless the requisite ‘fault’ element is also proven (17 February 2021).  More...

Penalty for Kimberly-Clark for false claims flushable wipes were made in Australia
The Federal Court has ordered Kimberly-Clark Australia Pty Ltd to pay a penalty of $200,000 for misleading consumers by falsely representing on its website that its Kleenex Cottonelle ‘flushable cleansing cloths’ were made in Australia, and dismissed the major finding the company had not made false and misleading claims about the flushabilty of the wipes (16 February 2021).  More...

Cases

State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (No 2) [2021] FCA 137
CONSUMER LAW – misleading or deceptive conduct under ss 18 and 29(1)(a), (g) and (h) of the Australian Consumer Law – whether conduct was “in trade or commerce” – characterisation of conduct – potentially affected class – discussion of “not insignificant number” criterion concerning the relevant class – relevance of that criterion to “passing off” scenarios invoking such statutory provisions – conflicting Full Federal Court authority – effectiveness of disclaimer
COPYRIGHT – artistic work – two-dimensional reproduction of three-dimensional statue – copyright infringement under s 36 of the Copyright Act 1968 (Cth) – whether copyright licence granted for the purposes of s 121 – defence of innocent infringement
TORTS – inducing breach of contract – master agreement for display and promotion of the Fearless Girl statue – art agreement for purchase and use of a limited-edition reproduction of the Fearless Girl statue – limitations on artist’s rights under the master agreement – breach of master agreement by the artist – interference with contractual relations – knowledge of terms of master agreement – defence of honest and reasonable belief – tort of passing off – relevant reputation
TRADE MARKS – trade mark infringement under s 120(1) of the Trade Marks Act 1995 (Cth) – whether the name “Fearless Girl” was used as a trade mark – whether use was in relation to services of the same description as those covered by the Fearless Girl trade mark or closely related goods within the meaning of s 120(2) – whether use was likely to deceive or cause confusion – defence of good faith use under s 122(1)(b)(i)
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18, 29(1)(a), (g) and (h)
Copyright Act 1968 (Cth) ss 10, 13, 14, 21, 31, 32, 36, 115, 119, 120, 121, 126
Trade Marks Act 1995 (Cth) ss 17, 120(1) and (2), 122(1)(b)(i)

Australian Competition & Consumer Commission v Kimberly-Clark Australia Pty Ltd (No 2) [2021] FCA 102
TRADE AND COMMERCE – false or misleading representations – where wrongdoing is admitted – pecuniary penalty – penalty agreed by parties - principles of assessment
Australian Consumer Law s 29; Competition and Consumer Act 2010 (Cth)
The respondent pay the Commonwealth of Australia a pecuniary penalty of $200,000 in total in respect of the contraventions of section 29(1)(k) of the Australian Consumer Law

Fonterra Brands (Australia) Pty Ltd v Bega Cheese Ltd [2021] VSC 75
CONTRACT — construction — exclusive licence granted to plaintiffs to use defendant’s registered trade marks on prescribed cheese and butter products — whether defendant prohibited from using the trade marks on any products — whether prohibition on defendant’s use of trade marks limited to products as defined in agreements — prohibition on defendant’s use of trade marks limited to products as defined.
RECTIFICATION — unilateral and common mistake — claim for rectification of agreements to insert the words ‘on or in relation to any product or otherwise whatsoever’ — whether at the time of executing agreements plaintiffs misapprehended that the defendant would be prohibited from using the trade marks on or in connection with any product whatsoever — plaintiffs failed to establish misapprehension by clear and convincing proof — claim for rectification dismissed.
RESTRAINT OF TRADE — whether restraint of trade doctrine applicable to clause 3.2 of agreements if defendants prohibited from using trade marks on or in connection with any products — whether restraint ancillary to licence to use trade marks —restraint of trade doctrine applicable — whether clause 3.2 of agreements invalid as an unreasonable restraint of trade if defendant prohibited from using trade marks on any products — clause 3.2 not invalid as an unreasonable restraint of trade.
CONTRACT — construction — whether plaintiffs subject to contractual obligation to engage in above the line advertising and new product development — whether plaintiffs required to effectively promote and develop sales of Bega branded products — whether plaintiffs required to promote and develop sales of Bega branded products in foodservices sector — whether plaintiffs required to position Bega cheese as a premium brand.
CONTRACT — implied term — whether agreements contain an implied term that plaintiffs would not give undue preference to the promotion and development of their own brands compared to the promotion and development of Bega branded products — term not necessary to give business efficacy to agreements — term not capable of clear expression — term not reasonable or equitable.
CONTRACT — plaintiffs solely responsible for ensuring compliance with legal and regulatory requirements relating to labelling, packaging and advertising of Bega branded products — whether plaintiffs misrepresented origin of Bega branded products to consumers — whether plaintiffs contravened ss 18 and 29(1)(k) of Australian Consumer Law — whether impugned conduct conveyed pleaded representation.
CONTRACT — whether common law rights of termination excluded by express contractual rights of termination.
CONTRACT — whether notices of termination invalid because of failure to specify remedy — whether notices invalid because of failure to identify breaches with sufficient specificity.
ELECTION — whether defendant precluded from relying on notices of termination as a result of the service of subsequent notices after rights of termination under earlier notices had crystallised.
REMEDIES — whether appropriate to grant declaration that defendant entitled to terminate agreements.
Evidence Act 2008 (Vic) s 140, Civil Procedure Act 2010 s 7, Australian Consumer Law (Cth) ss 18, 29(1)(k), Trade Marks Act 1955 (Cth) s 19(3), Competition and Consumer Act (Cth) pt VIIA, Trade Mark Regulations 1955 (Cth) reg 3.1.

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