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Inside track: Competition and Consumer Law

06 August 2019

#Competition & Consumer Law

Inside track: Competition and Consumer Law

In the media

Court penalises potato wholesaler for breaching the Horticulture Code and declares unfair contract terms void
In proceedings brought by the ACCC, the Federal Court has declared that certain terms of contracts between Australia’s largest potato wholesaler, Mitolo Group Pty Ltd, and potato growers entered into between December 2016 and February 2018 were unfair contract terms and therefore void (02 August 2019).  More...

Repeal of Competition and Consumer Act section may stymie small business
The IPA has expressed concerns about the upcoming repeal of the Competition and Consumer Act 2010 (CCA) Section 51(3) and its potential impact on small business. This repeal may have a direct impact on Section 45 of the CCA and as a result could stifle competition rather than encourage it (02 August 2019).  More...

K-Line convicted of criminal cartel conduct and fined $34.5 million
The Federal Court found K-Line engaged in a cartel with other shipping companies in order to fix prices on the transportation of cars, trucks, and buses to Australia between 2009 and 2012. K-Line’s fine of $34.5 million is the largest ever criminal fine imposed under the Competition and Consumer Act (02 August 2019).  More...

Big Warehouse pays penalty and compensates customers
Online spare parts retailer Big Warehouse has paid a $12,600 penalty after the ACCC issued an infringement notice against the company for allegedly breaching the Australian Consumer Law (ACL) by misleading a consumer about their consumer guarantee rights in relation to spare parts they had ordered (01 August 2019)  More...

Josh Frydenberg and Gladys Liu hit with High Court challenge over election results
Federal Treasurer Josh Frydenberg and Liberal MP Gladys Liu are facing a High Court challenge to their victories at this year's federal election. Documents filed to the High Court, sitting as the Court of Disputed Returns, claimed the posters imitated official Australian Electoral Commission (AEC) material and were therefore in breach of electoral laws that make misleading and deceptive conduct illegal (31 July 2019).  More...

Regulators approach to Crown scandal defies belief
In the absence of some coordinated response from government and regulators, it will be Crown’s shareholders disaffected shareholders that are left to extract some financial justice for themselves. The class action against Crown, in the pipeline since 2017,  is looking to establish that Crown engaged in misleading or deceptive conduct and/or breached its continuous disclosure obligations with respect to its operations in China (30 July 2019).  More...

The Australian government has dropped its big report into big tech — here’s what it means for Google and Facebook
The Australian government has released the final report from its 18-month investigation into Facebook and Google’s online dominance and the impact on other digital platforms. It is now considering major changes including forcing Google to provide its users alternatives to its Chrome internet browser and develop new codes of conduct to police fake news and make sure they negotiate fairly with traditional media companies (26 July 2019).  More...

ACCC appeals 'flushable' wipes decision
The ACCC has appealed the Federal Court’s decision to dismiss part of the ACCC’s case against Kimberly-Clark. The ACCC will argue on appeal that Kimberly-Clark’s flushable claims should have been found to be misleading because there was evidence of the risk of harm these wipes posed to the sewerage system, and that the trial judge was wrong to require evidence that these particular wipes had caused actual harm  (26 July 2019).  More...

Horse sales giant Inglis, ATC in $20 million legal feud over tip
A secret dumping ground in the corner of Warwick Farm racetrack, is central to a $20 million legal feud between horse sales giant Inglis and the Australian Turf Club. The sales firm believed it was being handed a site free of contamination after diesel spills were identified and cleaned up, but says it has had to resort to the courts in order to pursue damages for what it believes was deceptive and misleading conduct (26 July 2019).   More...

Concerns about ANZ Terminals, GrainCorp deal
The ACCC has released a statement of issues raising preliminary concerns about ANZ Terminals’ proposed acquisition of GrainCorp Liquid Terminals Australia Pty Ltd. “In some locations, the acquisition will lead to ANZ Terminals becoming the only storage provider for some liquid products. This loss of competition could result in higher prices for customers, or lower levels of service (24 July 2019).  More...

Market imbalance threatens future wine industry growth
ACCC Deputy Chair Mick Keogh said the imbalance in bargaining power results in growers accepting contracts with sub-optimal terms, with limited ability to resolve disputes, and a lack of pricing transparency is also hindering the effective operation of the market. The ACCC is currently seeking feedback from the industry on its interim report (22 July 2019).   More...

Practice and Regulation

Current Senate Inquiries July 2019 - Environment and Communications Legislation Committee
Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019

ACCC Digital Platforms Inquiry
The report contains 23 recommendations, spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms. Before a detailed Government response is provided a further consultation process will take place. It will run for 12 weeks, after which the Government intends to release its response by the end of 2019. See the Treasurer's media release. Please see also ACCC media release on the final report. Further details to follow on Digital Platforms page.

ACCC draft guidelines on repeal of subsection 51(3) of the CCA
The draft guidelines outline the ACCC’s approach to enforcing the CCA following the repeal, where certain conduct involving intellectual property rights was exempt from certain parts of the competition law, from 13 September 2019. 

Cases

Pitcher Partners Consulting Pty Ltd v Neville's Bus Service Pty Ltd [2019] FCAFC 119
TORTS – deceit – where appellants’ advice on a tender price contained an amortisation error – tender won – appellants dishonestly concealed error and provided false assurance that contract price included full subvention allowed for by Transport for NSW – onus on respondent to prove damages qualified when deliberate wrong of applicants caused difficulties of proof – no Jones v Dunkel inference drawn – no error in finding on the balance of probabilities that respondent would have successfully renegotiated the contract had the error been known – direct loss calculated as prejudice or disadvantage suffered as a consequence of altering position under fraudulent inducement - appropriate to rely on presumption against wrongdoer – liar held to restore the innocent party to position consistent with lie being true - appeal dismissed with costs
CONSUMER LAW – dishonest conduct found to be seriously misleading or deceptive conduct
Competition and Consumer Act 2010 (Cth) sch 2, ss 18, 236, 237; Trade Practices Act 1974 (Cth), s 87

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