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Inside track: Competition & Consumer

04 August 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Australian news media to negotiate payment with major digital platforms
Australian media will be able to bargain with Google and Facebook to quickly secure fair payment for news content if a draft mandatory code released by the ACCC is adopted. The draft code is aimed at addressing acute bargaining power imbalances between Australian news businesses and Google and Facebook, including through a binding “final offer” arbitration process (31 July 2020).  More...

Country of origin food labelling evaluation begins
The evaluation of country origin labelling for food will consider if the labels are helping consumers make more informed choices, as well as clarifying the origin claims that businesses can make, while avoiding excessive costs for businesses which will be passed onto shoppers (31 July 2020).  More...

Full Federal Court dismisses ACCC appeal in TPG 'prepayment' case
The Full Federal Court has dismissed the ACCC’s appeal against TPG Internet Pty Ltd (TPG) in relation to the marketing and sale of some prepaid internet, home telephone and mobile plans. The ACCC’s case was that by representing this was a ‘prepayment’, consumers were misled by TPG into thinking they could use all the money they had prepaid for out-of-plan services, when this was not usually possible (30 July 2020).  More...

ACCC proposes to continue to allow airlines to cooperate on regional routes
The coordination may involve arrangements such as each carrier on a route operating one daily service, with revenue shared between carriers, or an operator suspending operation on a route to allow another carrier to maintain a viable service. ACCC acknowledges that such coordination between airline competitors in this way would normally raise competition concerns (29 July 2020).   More...

Locality Planning Energy pays penalty for alleged breach of Electricity Retail Code
The Electricity Retail Code imposes rules on electricity providers for how they must advertise prices and conditions on market and standing offers. By not displaying the information required by the Code, LPE made it difficult for consumers to assess the value of the deal against others advertised in the market (29 July 2020). More...

ACCC launches action against Google
The ACCC alleges Google misled consumers when it failed to properly inform consumers, and did not gain their explicit informed consent, about its move in 2016 to start combining personal information in consumers’ Google accounts with information about those individuals’ activities on non-Google sites that used Google technology, formerly DoubleClick technology, to display ads. The ACCC also alleges that Google misled consumers about a related change to its privacy policy.
Correction: An earlier version of this media release used a hypothetical example that suggested that Google used information about users’ health to personalise or target advertisements. Google says that it does not show personalised ads based on health information. This example has been removed from the media release (27 July 2020).  More...

NSW quietly axed the law that could've prevented COVID-19 price gouging
A former Fair Trading commissioner says legislation designed to deal with post-war scarcity could've stopped the marketplace chaos of 2020 — except that it was repealed last year without public debate (25 July 2020).  More...

Ruby Princess operators face class action after coronavirus outbreak on cruise ship
Eight hundred people have joined a class action against the operators of the Ruby Princess over its "misleading and deceptive" conduct surrounding the COVID-19 outbreak in March (24 July 2020).  More...

ACCC back in court as banking cartel case resumes
The criminal cartel case against banks and bankers continued from 20-24 July in the District Court in Penrith before Magistrate Giles, courtesy of a virtual courtroom (24 July 2020).   More...

Service Seeking to pay penalty for misleading online ‘customer’ reviews
Service Seeking Pty Ltd will pay $600,000 in penalties for making false or misleading representations regarding reviews of businesses which were offering services on the platform. Service Seeking admitted that it had falsely represented that reviews published on its platform were by customers, when in fact the reviews had been created by the businesses themselves through the use of Service Seeking’s ‘Fast Feedback’ feature (22 July 2020).  More...

ACCC proposes to allow oil refineries to continue to cooperate on fuel supply measures
The ACCC is proposing to allow The Australian Institute of Petroleum and major oil refiners to continue to cooperate on measures designed to ensure fuel security during the COVID-19 pandemic. An interim authorisation was granted in April (23 July 2020). More...

Chrisco undertakes to address concerns about lay-by plans and promotions
Chrisco Hampers Australia Limited (Chrisco) has provided a court-enforceable undertaking to the ACCC in which it acknowledges that a term in its lay-by agreements for Christmas hampers and other items, known as a “HeadStart Plan”, may be an unfair contract term. Chrisco also admitted that it likely made false or misleading representations to consumers in its promotions about the plan (21 July 2020).   More...

Practice and Regulation 

Consumer Safeguards Review Part C: Choice and fairness - consultation paper
Department of Infrastructure, Transport, Regional Development and Communications (Australia)
Government of Australia: 27 July 2020
The Consumer Safeguards Review is examining what consumer safeguards are required for a changing communications environment, with a focus on the post-2020 environment. This consultation paper seeks the public's views on proposals for reform regarding choice and fairness in the retail relationship between customers.   More...

Consultation: Country of origin food labelling
The evaluation of country origin labelling for food will consider if the labels are helping consumers make more informed choices, as well as clarifying the origin claims that businesses can make, while avoiding excessive costs for businesses which will be passed onto shoppers.  
The consultation will include surveys, consumer focus groups and interviews with industry and government. 
A discussion paper and an opportunity to provide views is available here until 11 September. The evaluation is expected to be completed by mid-2021. More information on country of origin labelling is available here

ACCC: COVID-19 (coronavirus) information for business 2020
As a first step, we encourage businesses to contact customers wherever possible to advise them of how you are handling various circumstances. In doing so, businesses should continue to be mindful of their obligations under the Australian Consumer Law, which include:

  • to not mislead customers, including about what the customer is entitled to under their terms and conditions
  • to not act unconscionably when dealing with their customers
  • to not seek to rely on unfair terms in standard form contracts with customers.

Guidelines on Part XICA - Prohibited conduct in the energy market
These guidelines set out how the ACCC will interpret Part XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they explain the general approach the ACCC will take in investigating alleged contraventions of Part XICA (prohibiting certain conduct involving retail pricing, financial contract markets and electricity spot markets) Part XICA will be in effect from 10 June 2020 to 1 January 2026.  More...

Cases

PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd [2020] FCA 1078
TRADE MARKS – infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) (Act) – claims for rectification of the Register pursuant to s 88(2)(a), relying on the grounds under ss 44, 58, 59 and 60, and s 88(2)(c) of the Act – claims for removal from the Register for non-use pursuant to s 92(4) and s 101 of the Act
COMPETITION –  misleading  or  deceptive conduct  in contravention of s 18 and s 29 of the Australian Consumer Law – whether relevant reputation was established at the date of the impugned conduct – whether there was any relevant misrepresentation – application dismissed
TORTS – passing off – whether relevant reputation was established at the date of the impugned conduct – whether there was any relevant misrepresentation – application dismissed
Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 29
Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AF, 37AG, 37AJ
Trade Marks Act 1995 (Cth), ss 6, 7, 8, 10, 14, 17, 20, 27, 44, 58, 59, 60, 88, 89, 92, 100, 101, 120

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130
CONSUMER LAW – prohibitions against  misleading  or  deceptive conduct  and false or  misleading  representations – prepaid telecommunications services – whether statements made on website and brochure conveyed  misleading  representation concerning refund of prepayment – applicable legal principles – whether it is necessary to show that a “not insignificant number” of persons must be misled or deceived – appeal dismissed
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 29(1)(b), 29(1)(g), 29(1)(i) 

Zaghloul v Jewellery & Gift Buying Service Pty Ltd t/as Nationwide Jewellers [2020] FCA 1045
BANKRUPTCY - annulment - appeal from decision to dismiss application for annulment of bankruptcy - application for annulment brought after discharge - creditor's petition based on failure to comply with bankruptcy notice requiring payment of judgment debt - whether court should go behind judgment debt - whether appellant was solvent at time of sequestration order - where service of creditor's petition was pursuant to substituted service orders - whether sequestration order ought not to have been made - whether discretion ought to have been exercised to grant annulment - where appellant alleged  misleading  or  deceptive conduct  and negligence on part of petitioning creditor and sought award of damages - where appellant alleged breach of duty on part of trustee in bankruptcy and sought relief - where primary judge refused to award damages or other relief - no error on part of primary judge demonstrated 

Australian Competition and Consumer Commission v Service Seeking Pty Ltd [2020] FCA 1040
CONSUMER LAW -  misleading  or  deceptive conduct  - application by regulator for declarations, pecuniary penalty and other orders - respondent admits it contravened s 18, s 29(e) and s 34 of the Australian Consumer Law - parties agreed facts and orders to determine proceeding - whether appropriate to make the orders sought by the parties - agreed contraventions borne out by the evidence - appropriate to grant declarations and injunction sought in the circumstances - consideration of principles relevant to assessing penalties - impugned conduct can be characterised as one course of conduct - proposed penalty appropriate in all the circumstances
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 29, 34, 224, 232, Part 3‑1 

Ng v Chan [2020] NSWSC 954
Misleading  and  deceptive conduct  made out. Fraud found. Damages awarded to the plaintiff. Defendant ordered to pay the plaintiff’s costs.
CONTRACTS – Misrepresentation – Fraudulent misrepresentation – the plaintiff paid the defendant two tranches of payments to acquire shares in an incorporated law firm – the law firm has since ceased to conduct practice due to the intervention of the Law Society of NSW – the plaintiff alleges the total of both tranches was $430,000 and the defendant argues it was only $300,000 – the plaintiff alleges he was induced to make both tranches through fraudulent,  misleading  and  deceptive conduct  by the defendant and an intermediary – the plaintiff seeks relief that the defendant repay the $430,000 purchase price of the shares – the defendant argues that he did not misrepresent the law firm’s prospects and the intermediary was not his agent.
Australian Securities and Investment Commission Act 2001 (Cth), ss 12BB, 12DA, 12GF

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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