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Inside track: Competition & Consumer Law

30 April 2019

#Competition & Consumer Law

Inside track: Competition & Consumer Law

In the media

NDIS buyers urged to exercise rights
The ACCC has reminded people with disability to use their consumer rights when purchasing goods or services under the National Disability Insurance Scheme (NDIS). Deputy Chair of the ACCC reminded new and existing businesses that they must also comply with their obligations under the Competition and Consumer Act, which includes the Australian Consumer Law (26 April 2019). More... 

Federal Court finds ticket reseller Viagogo misled consumers
The ACCC took the company to court for its practices when selling tickets to music, sport and theatre events, ultimately finding ticket reseller Viagogo to have misled consumers. The company has been the subject of customer complaints, industry backlash and court action overseas (19 April 2019). More...  

Australian 4WD Hire in court for alleged breaches of consumer law
The ACCC has instituted proceedings against four-wheel drive vehicle rental company Smart Corporation Pty Ltd (trading as Australian 4WD Hire), alleging it used unfair contract terms, engaged in unconscionable conduct, and made false or misleading representations in relation to insurance cover, in breach of the Australian Consumer Law (ACL) (18 April 2019). More...

Giant global brands ban supermarket deliveries in price war
The pricing stoushes with Nestle and Mars are a rare black eye for the supermarket giants, who have long histories of using their market power to bully their suppliers. The introduction of a Grocery Code of Conduct in 2015 has reined in the worst excesses, but the big two still apply the blowtorch as hard as they can to try to keep prices down. But small suppliers remain at the mercy of the supermarket giants in the ongoing war over low prices (18 April 2019). More...

Bupa Aged Care faces ACCC action over alleged false claims at aged care centres
The competition watchdog is taking Bupa Aged Care to court alleging that for more than a decade it charged residents for numerous expensive services it never provided (16 April 2019). Bupa Aged Care faces ACCC action over alleged false claims at aged care centres. More...

Practice and Regulation 

Interagency cooperation agreement between ACCC and FBI
The MOC provides for the exchange of expertise and staff between the two agencies to enhance work in the detection, investigation and prosecution of criminal competition offences. The MOC complements an existing intergovernmental agreement between Australia and the United States, which allows for in-depth cooperation between the ACCC and various competition law enforcement bodies in the US (15 April 2019). More...

Cases

Australian Competition and Consumer Commission v Viagogo AG [2019] FCA 544
CONSUMER LAW – misleading or deceptive conduct – contravention of ss 18, 29(1) and/or 34 of the Australian Consumer Law – part price representations in contravention of s 48(1) of the Australian Consumer Law – where respondent represented that it was an authorised or official seller of tickets when it was not – where respondent made representations as to number of tickets remaining available for sale from the venue when in fact remaining tickets available were only from the respondent – where total price not adequately disclosed because of additional fees– where part price representations were made in breach of s48(1) – conduct in contravention of the Australian Consumer Law for each of the alleged misrepresentations - Competition and Consumer Act 2010 (Cth) Schedule 2, ss 18, 29(1), 34, 48.

Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485
BANKRUPTCY AND INSOLVENCY – application to set aside bankruptcy notice under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) – where applicant asserts cross-claim exceeding the amount in the bankruptcy notice – where claims of relief are either misconceived or doomed to fail – application summarily dismissed.
PRACTICE AND PROCEDURE – summary dismissal under r 26.01 of the Federal Court Rules 2011– applicant seeks damages for breaches of director’s duties under ss 180, 181, and 182, as well as oppressive conduct under s 232 and s 233 of the Corporations Act 2001 (Cth) – where no entitlement to claim damages or statutory compensation – claim summarily dismissed.
PRACTICE AND PROCEDURE – summary dismissal under r 26.01 of the Rules – applicant seeks damages pursuant to s 236 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) – material facts not pleaded – no identifiable basis for claim – application summarily dismissed.
PRACTICE AND PROCEDURE – summary dismissal under r 26.01 of the Federal Court Rules 2011 – applicant seeks damages for breach of fiduciary duties in a joint venture – no facts pleaded of partnership or other fiduciary relationship – claim summarily dismissed.
Corporations Act 2001 (Cth) ss 180, 181, 182, 232, 233; Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) s 236; Bankruptcy Act 1966 (Cth) ss 5, 40(1)(g), 58; Superannuation Industry (Supervision) Act 1993 (Cth).

Porges v Adcock Private Equity Pty Ltd [2019] NSWCA 79
CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Silence — Sale of shares in company — Vendor represented to purchaser that company was good and profitable investment — Vendor disillusioned with management of company — Vendor aware of risk of litigation against company — Whether primary judge erred in finding vendor’s failure to disclose was misleading or deceptive conduct.

Midland Metals Overseas PTE Limited v Australian Cablemakers Association Limited [2019] NSWCA 78
TRADE AND COMMERCE – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 – whether conduct misleading or deceptive – common ground that letters contained incorrect representations – whether the letters had tendency to lead the recipient Ministers into error – inquiry to be conducted by reference to objective characteristics of recipient – inquiry to be conducted prospectively – no likelihood that the letter would lead Ministers into error.
TRADE AND COMMERCE – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 – whether conduct in trade and commerce – where letters sent to government Ministers informing them of electrical cable safety concerns – where body making impugned representations is a representative group for Australian cable manufacturers – where impugned representations relate to electrical cable safety standards.
CIVIL PROCEDURE – Court of Appeal – where issues not raised at trial sought to be agitated – appellant not permitted to reframe its case not put below – Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 and Metwally v University of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481 applied.

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

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