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Inside track: Competition & Consumer

04 February 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Luxury Perth car dealership, director banned from industry
A former luxury car dealer who was fined $100,000 for leaving customers out of pocket has been banned from the industry indefinitely following a decision in the State Administrative Tribunal last week (02 February 2020).  More... 

Penalties for allegedly selling or advertising recalled cars with dangerous Takata airbags
Three corporations, Grays Ecommerce Group Limited (Grays), Berwick Motor Group Pty Ltd (BMG) and HG Innovations Pty Ltd (HG Innovations), have paid penalties totalling $63,000. The ACCC had reasonable grounds to believe that Grays had made false or misleading representations by advertising three vehicles for sale that were under active recall (31 January 2020).  More... 

Rio Tinto scaps reverse factoring
Rio Tinto scrapped its controversial reverse factoring program to speed up payments to small suppliers, in a quick response to rising pressure from media and small businesses. Also known as supply chain finance, reverse factoring has become a  popular method to improve cash flow management, but analysts are increasingly sounding warning notes over its misuse (29 January 2020).  More... 

Coffee chain's hefty bill for misleading conduct
The District Court has handed the director of SA-based chain Funk Coffee & Food a $600,000 bill for misleading a franchisee about the turnover of a city café – but he’s vowed to appeal the judgement (29 January 2020).  More... 

Buy now, pay later services bring in new code of conduct
The increasingly popular "buy now, pay later" sector is promising better safeguards for vulnerable customers at risk of getting in over their heads with excessive credit. ASIC regulates buy now, pay later providers under the ASIC Act, which covers misleading and deceptive conduct, unfair contracts and privacy (29 January 2020).  More... 

$4.2 million in penalties ordered against former car wash franchisor Geowash and two executives
Following action by the ACCC, the Court found Geowash made false or misleading representations and failed to act in good faith in relation to the sale and marketing of its franchises. The Court also found that Geowash acted unconscionably towards franchisees through its charging practices for the establishment and fit-out of Geowash franchise sites. (24 January 2020).  More... 

'Absolutely outrageous' Trivago misled customers on hotel pricing
The ACCC says online hotel booking site Trivago is one of several online comparison websites that could face severe penalties after a court ruled the German-based giant had misled consumers about hotel room rates (21 January 2020).  More... 

Belle Gibson's home in Melbourne raided over $500,000 in unpaid fines
Cancer fraudster Belle Gibson has been raided by Victoria's Sherriff's Office in a bid to recoup more than $500,000 of outstanding fines and penalties. Gibson was fined $410,000 in 2017 after she was found guilty of misleading and deceptive conduct (22 January 2020).  More...

Downloads soar as Australians binge on streaming:  ACCC’s Communications Market Report for 2018-19
Although the very recent changes to NBN Co’s products and pricing are helpful, the ACCC is continuing to consider whether further action is needed to make sure consumers aren’t worse off when they switch to the NBN. ACCC has observed a reduction in the number of affordable entry-level plans available on the market. These are being withdrawn in favour of higher priced plans with more inclusions (21 January 2020).  More... 

Practice and regulation 

National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019 (No. 2)
On 5 December 2019, the Senate referred the above inquiry for report by 6 April 2020. This Bill amends the regulatory framework for Small Amount Credit Contracts (commonly known as payday loans) and consumer leases (known as rent-to-buy schemes). The inquiry is here. Submissions closes on 21 February 2020. 

ACCC discussion paper:  ocean liner shipping class exemption
The ACCC is seeking comments on a possible class exemption from competition laws for for liner shipping. A discussion paper has been released and submissions may be made until 28 February 2020. See ACCC, ‘Ocean liner shipping class exemption’ (class exemption register) and ACCC discussion paper - Ocean liner shipping class exemption

Cases

Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23
CONSUMER LAW - application by regulator for relief orders and pecuniary penalties against a company, its sole director and its 'national franchising manager' - where findings as to liability made - where findings of unconscionable conduct and breach of the good faith obligation made - where director and 'national franchising manager' found to be knowingly concerned in the unconscionable conduct - consideration of totality principle and course of conduct principle in assessing penalties - consideration of relativity of penalties between individuals and corporations - where regulator proposed establishment of a non-party consumer redress fund - where loss or damage likely to have been suffered by non-party consumers - consideration of the nature and extent of the power conferred by s 239 of the Australian Consumer Law - consideration of form of consumer redress fund to established - orders made for declarations, pecuniary penalties, injunctions, disqualification and redress
Australian Consumer Law ss 21, 224, 238, 239, 240, 241, 243, 248; Competition and Consumer Act 2010 (Cth) ss 76, 83, 51ACB, 51AE, 137H; Trade Practices Act 1974 (Cth) s 87AAA

Australian Competition and Consumer Commission v Trivago N.V. [2020] FCA 16
CONSUMER LAW – misleading or deceptive conduct – where the respondent conducted an online search and price comparison platform for travel accommodation – where the respondent’s television advertisements stated that the respondent made it easy “to find the ideal hotel for the best price” – where the website presented prices from a number of different online booking sites for a particular hotel – where one price was presented in green, in a large font with space around it (the Top Position Offer) – where the expert evidence at trial established that in approximately 66% of listings, higher priced offers were selected as the Top Position Offer over alternative lower priced offers – whether the respondent made each of the alleged representations – whether, if the representations were made, they were misleading or deceptive
Competition and Consumer Act 2010 (Cth), ss 4, 5, 155, Sch 2, Australian Consumer Law, ss 18, 29, 34
Evidence Act 1995 (Cth), ss 79, 81, 136, 140; Federal Court Rules 2011, r 5.04

Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1
CONTRACTS – express obligations of confidence allegedly preventing voluntary communications with the solicitors for opposing party in litigation – primary judge followed AS v Minister for Immigration and Border Protection (Ruling No 6) [2016] VSC 774; 53 VR 631 in exercising a discretion to relieve persons owing otherwise enforceable obligations of confidence to facilitate the overarching purpose of civil litigation rather than considering whether the provisions were void at law because they had a tendency to interfere adversely with the administration of justice or were enforceable by way of injunction in equity – held that the approach in AS v Minister for Immigration and Border Protection (Ruling No 6) is contrary to principle leading to error in the making of the primary judge’s order
CONFIDENTIAL INFORMATION – consideration of the sources of obligations of confidence
PRACTICE AND PROCEDURE – consideration of orthodox approaches to enforcing obligations of confidence and obtaining information from potential witnesses in advance of trial alleged misleading representations were to the effect that Crown had in place adequate risk policies concerning its business and operations in China, and that its marketing as a luxury brand to Chinese “VIP gamblers” would continue.

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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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Howard Rapke

Howard Rapke

Managing Partner

Melbourne

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Ian Robertson AO

Ian Robertson AO

National Managing Partner

Sydney

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Paul Venus

Paul Venus

Managing Partner

Brisbane

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