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Inside track: Competition & Consumer

31 March 2020

#Corporate & Commercial Law

Inside track: Competition & Consumer

In the media

1300 Australia to remove alleged unfair terms and refund excessive termination fees
1300 Australia has undertaken to amend its current and future contracts with small businesses and will refund part of the termination fees paid by small business customers, as a result of ACCC concerns that some of the contract terms were unfair (27 March 2020).  More...

ACCC authorises Regional Express to coordinate with other airlines
The interim authorisation will also enable Rex, QantasLink and Virgin to share revenue from providing services on the routes. Importantly, it is conditional on airlines charging fares no higher than those in place on February 1, 2020, meaning the airlines will not be able to coordinate to raise prices (26 March 2020).  More...

Cooperation to aid supply of COVID-19 medical equipment
Medical technology companies will be allowed to work together to coordinate the supply and potential manufacture in Australia of ventilators, testing kits, personal protective equipment and other medical equipment needed to deal with the COVID-19 pandemic (25 March 2020).  More...

Misuse of EPA logo leads to conviction and fine
EPA’s Principal Solicitor Guy Ventrice said the fines and conviction served as a reminder that courts will take a dim view of anyone who misuses the logo of EPA for their own commercial benefit. The EPA is prepared to take decisive action against any person who falsely suggests an affiliation with EPA (27 March 2020).  More...

Coles, Woolies, IGA can now 'collaborate' as shoppers report price gouging
Australia's competition watchdog turns one of the key rules of consumer law on its head in response to the coronavirus pandemic (24 March 2020).  More...

Supermarkets to work together to ensure grocery supply
The ACCC has granted swift interim authorisation to Coles, Woolworths, Aldi and Metcash (and other grocery retailers wishing to participate) to coordinate in order to ‘ensure consumers have reliable and fair access to groceries’ during the pandemic (20 March 2020).  More...

Australian Banking Association small business relief package
The ABA sought ACCC interim authorisation on behalf of its members because the relief package involves coordination by competing banks, actions that would otherwise raise concerns under Australian competition laws (20 March 2020).  More...

Advice on event and travel cancellations due to COVID-19
If the event, flight or travel service is cancelled due to government restrictions, consumer rights under the consumer guarantees may be impacted. In these situations consumers may be entitled to a refund under the terms and conditions of their ticket, or potentially may make a claim under a travel insurance policy (17 March 2020).  More...

Debt collector Panthera to pay $500,000 in penalties for undue harassment
The Federal Court  also ruled that Panthera misled one of the consumers by telling them they needed to pay Panthera $100 to have a default listing removed from their credit file, even though the credit default listing was incorrect and could have been removed for free under the Privacy Act (16 March 2020).  More...

Australian motorists must benefit from any sustained crude oil price fall
The ACCC will closely monitor retail petrol price movements in Australia, to determine if further sustained reductions in international prices are being passed onto consumers, and will be publicly identifying those retailers that are not passing on reductions (16 March 2020).  More...

Warning on COVID-19 scams
Australians should be aware scammers are adapting existing technology to play on people’s fears around coronavirus and selling products claiming to prevent or cure the virus. Other scams include people receiving misinformation about cures for coronavirus and investment scams claiming coronavirus has created opportunities to make money (19 March 2020).  More...

ACCC finds Gen Z most easily scammed
New figures released by the Australian Competition and Consumer Commission (ACCC) have revealed that young Australians lost more than $5 million in scams last year, with reports from under-25’s increasing at a faster rate than those from older generations (16 March 2020).  More...

ASIC commences proceedings against CBA over AgriAdvantage Plus Package – Royal Commission case study
ASIC has commenced proceedings in the Federal Court against Commonwealth Bank of Australia (CBA) for alleged breaches of the ASIC Act and Corporations Act for failures of their AgriAdvantage Plus Package (AA+ Package).  More...

In practice and regulation

Draft notice: ACCC proposal to revoke Stanley Black & Decker’s Resale Price Maintenance
Stanley Black & Decker and interested parties can comment on the draft notice before the ACCC makes a final decision. Submissions are due by 24 April 2020. Further information, including the resale price maintenance notification and details about how to make a submission are available on the ACCC’s public register at Stanley Black & Decker

Consumer Affairs Victoria: Know your rights as Victoria adapts to coronavirus (COVID-19) - News alert
The situation is frequently changing and Victorians understandably have many questions. In response to increased enquiries, Consumer Affairs Victoria has compiled information about how the pandemic affects areas we regulate.
A new page here covers: evictions; renters in crisis;  inspections and auctions; owners corporation annual general meetings; products and services; price gouging and resellers;  event cancellations and refunds; sports memberships;  scams relating to coronavirus (COVID-19) (25 March 2020).  More...

ACMA: Implementation of the Spectrum Pricing Review - consultation 07/2020
This paper outlines our proposed guidelines and focus areas as we implement the Spectrum Pricing Review.
Status Open, submissions close on 19 April 2020. Consultation number IFC 7/2020.  More... 

ACCC inquiry: ad tech and ad agency services
The ACCC’s ad tech and ad agency services inquiry has commenced with the ACCC releasing an issues paper and seeking submissions from interested parties. Submissions are due by 21 April 2020. See issues paper.

ACCC consultation: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26 GHz spectrum licences, the potential uses for the spectrum, the markets where this spectrum will be used, and any competition issues associated with how this spectrum is allocated. The ACCC is inviting submissions from interested parties by 27 March 2020. The Minister has asked for the ACCC’s advice by mid-May 2020. The consultation paper is available at Spectrum Competition Limits

ACCC discussion paper: Agriculture machinery – after sales markets
The ACCC has released a discussion paper focusing on agriculture machinery aftermarkets. The associated survey is open until 5 April and submissions can be made on the ACCC’s consultation hub. See the discussion paper here.

NSW reminder:  Changes to the residential tenancy laws
Changes to the residential tenancy laws commenced on 23 March 2020, with amendments to the Residential Tenancies Act 2010 (the Act) and the new Residential Tenancies Regulation 2019 (the new Regulation).
Strengthened information disclosure requirements - A landlord or agent must not make false or misleading statements or knowingly conceal certain material facts from a prospective tenant before they sign an agreement. The list of current material facts is available in the information statement (checklist for new tenants).  More...

Cases

Davaria Pty Limited v 7-Eleven Stores Pty Ltd [2020] FCA 398
GROUP PROCEEDINGS – leave to appeal docket judge’s order – practice and procedure – communications with group members by the respondent – potential release of respondent’s liability – conditions to be imposed on any such release – applicant sought restraining orders – potential undue pressure – real risk of group members being misled – unfairness – the relevance of the Franchising Code of Conduct – s 33ZF of Federal Court of Australia Act 1976 (Cth) – acceptance of undertaking – leave to appeal refused
Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth) Sch 1

Bailey v BMW Sydney Pty Ltd & Anor [2020] NSWDC 53
(1) Judgment for the defendants.
MISLEADING  OR  DECEPTIVE CONDUCT  – whether representations were made – whether representations were with respect to future matters –whether the car suffered from defects – whether there was a failure to promptly service and supply parts for the car – whether representations about the car were  misleading  or deceptive – damages
Australian Consumer Law, ss 4, 18, 236, 278(2); Competition and Consumer Act 2010 (Cth), Sch 2s 52 of the Trade Practices Act 1974 (Cth)

Storm Industries Pty Ltd trading as trustee of the T&L Trust v Unicar Australia Pty Ltd [2020] NSWDC 51
Held: In summary, I have found that the plaintiff has established contraventions by the defendants of the proscription against misleading  or  deceptive conduct  under s 18 of the ACL, which is applicable under the Fair Trading Act. In the case of the second and third defendants, direct and ancillary liability is established
TRADE AND COMMERCE – alleged  misleading  or  deceptive conduct  in connection with investment in a ‘start-up’ company – applicable statutory regime – whether representations  misleading  or deceptive – whether omission to disclose matters relating to circumstances of investment  misleading  or deceptive
DAMAGES – whether reliance made out – damage suffered – whether ‘real’ value of shares at date of acquisition established – whether appropriate to make order for compensation – relevance of contributory negligence
JURISDICTION – monetary claim under ss 236 and/or 237 of Australian Consumer Law – whether the Australian Consumer Law is applicable as state law –monetary claim falls within the monetary limit of the jurisdiction of the District Court of New South Wales – whether the District Court has jurisdiction to grant other relief under s 237
Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth)

AFT Pharmaceuticals (AU) Pty Limited v Reckitt Benckiser (Australia) Pty Limited [2020] FCAFC 45
CONSUMER LAW – comparative advertising of over-the-counter analgesic products – whether advertisements 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 characteristic of goods – whether adequate scientific foundation for representations as to superiority of pain relief provided by appellant’s analgesic product over other analgesic products – whether primary judge erred in evaluating the evidence – whether primary judge erred in applying the onus of proof – appeal dismissed
Competition and Consumer Act 2010 (Cth)

Australian Competition and Consumer Commission v Panthera Finance Pty Ltd [2020] FCA 340
CONSUMER LAW – where respondent admitted contraventions of Australian Consumer Law – where respondent contacted consumers pursuing payment of alleged debt – where consumers were not liable for alleged debt – undue harassment – false or  misleading  representations – agreed pecuniary penalties – application granted
HUMAN RIGHTS – Privacy – interlocutory application – where suppression orders sought for individuals that have provided affidavit evidence – where orders seek to prevent the disclosure of confidential information – commercial sensitivity of information is an appropriate basis for making a suppression or non-publication order – application granted
Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth) ss 155AAA, 155AAA(21), Sch 2 (Australian Consumer Law) ss 29, 29(1)(m), 50, 50(1), 224(1)(a)(ii), 224(3) item 2, 246(1), 246(2), 246(2)(b). 

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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