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Inside track: Competition & Consumer

06 July 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Dairy code compliance under ACCC scrutiny
The ACCC is closely monitoring the introduction of the new mandatory dairy code of conduct, including by checking processors’ compliance with the code, and is ready to take enforcement action where appropriate.  Agreements must include a minimum milk price, among other conditions (30 June 2020).  More...

Foreign exchange broker banned
ASIC found that Steven Marsh, a former employee of Forex Capital Trading  made misleading representations to clients, including that clients would profit from trading with his firm, despite there being no reasonable grounds for making this representation, particularly given that investing in CFDs is high risk (30 June 2020).  More...

2020 ACT Election: Greens to bring truth in electoral advertising to a vote
With less than 100 days until the polls open in the ACT, the ACT Greens will urgently bring this debate to a vote to ensure that incorrect electoral material – including intentionally deceiving and misleading information – is banned ahead of the 2020 election (30 June 2020).  More...

Wirecard’s Australian arm sued by former client, Finstro
A former business client of Wirecard Australia is suing the German-owned subsidiary for alleged misleading or deceptive conduct under NSW fair trading laws (29 June 2020).  More...

Brands boycotting Facebook, ACMA code of conduct highlight push to tackle harmful misinformation online
ACMA’s new paper, Misinformation and news quality on digital platforms, features a proposed code development process and framework, objectives and outcomes aimed at better qualifying online news and information ACMA’s paper states it’s using the term ‘misinformation’ to describe all forms of potentially harmful, false, misleading or deceptive information which can have a harmful affect on users and the community (26 June 2020).  More...

ACCC applies to the High Court for special leave to appeal Pacific National merger decision
The ACCC is seeking special leave to appeal to the High Court from the Full Federal Court’s decision that Pacific National’s acquisition of the Acacia Ridge terminal from Aurizon) would not be likely to substantially lessen competition.  The case centres on the interpretation of section 50 of the Competition and Consumer Act (CCA) (26 June 2020).  More...

ACCC: Gas cartel lied through its teeth to governments
The head of Australia’s consumer watchdog has slammed the gas industry, accusing it of misleading governments into approving massive gas export projects that have led to soaring power prices, killing off companies and jobs. But the gas industry lobby group APPEA categorically rejected the ACCC chairman’s criticisms (26 June 2020).  More...

Consumers urged to check their bank balance for unexpected fees
The ACCC says retailers may be engaging in misleading and deceptive conduct if Australian consumers are given the impression that their transaction will occur in Australia. ACCC noted that businesses should clearly inform consumers when they are likely to be charged an international transaction fee and has issued guidance to retailers about how price information should be presented to consumers (25 June 2020).  More...

Whitegoods prices soared as Australians panic-bought food, Choice finds
Consumer advocacy group Choice is calling on state governments to review their consumer laws, after they found the price of some whitegoods soared as Australians stocked up on food ahead of coronavirus restrictions (24 June 2020).  More...

ACCC alleges Dodo and iPrimus used 'fundamentally flawed' testing to mislead customers about NBN speeds
The consumer watchdog alleges Dodo and iPrimus used a "fundamentally flawed" testing methodology as the basis for advertising claims about typical evening broadband internet speeds (23 June 2020).  More...

ACCC gets ticket to test airlines
The Treasurer has directed the Australian Competition and Consumer Commission (ACCC) to monitor Australia’s domestic air passenger services for the next three years and report quarterly on prices, costs and the profits of the industry (22 June 2020).  More...

iSignthis seeks $27m in damages from ASX
A fintech unicorn whose shares have been banned from trading for the past eight months is on the offensive against Australia's sharemarket operator, alleging it engaged in misleading and deceptive conduct (23 June 2020).  More...

Norwegian shipper pleads guilty to cartel conduct in Australia
Norwegian shipping company Wallenius Wilhelmsen Ocean AS pleaded guilty to charges of criminal cartel conduct in Australia’s Federal Court on Thursday, following an investigation by the country’s competition regulator (19 June 2020).  More...

Qantas offers refunds for cancellations as Government instructs ACCC to watch airlines
Qantas is offering customers a refund for flights cancelled or suspended due to COVID-19 travel restrictions, as the Government orders Australia's competition watchdog to monitor anti-competitive behaviour of airlines (19 June 2020).  More...

Wallenius Wilhelmsen pleads guilty to criminal cartel conduct
Shipping company Wallenius Wilhelmsen Ocean AS (WWO) has entered a guilty plea to criminal cartel conduct in the Federal Court. In August 2019 the CDPP charged WWO with cartel conduct relating to the transportation of vehicles to Australia between June 2011 and July 2012 (18 June 2020).  More...

Practice and Regulation

Updated franchising code of conduct
Compilation No. 2 of the Competition and Consumer (Industry Codes—Franchising) Regulation 2014 has been registered
on the Federal Register of Legislation. The compilation incorporates the recent amendments made in relation to new motor vehicle dealerships (26 June 2020). 

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....

To Bar Order, or Not to Bar Order: Facilitating Settlement in Australian Anti-Cartel Class Actions
Bethany Moore; Australian Business Law Review, Vol 48, Part 1 29 June 2020.  More...

Cases

Brecher v Barrack Investments Pty Limited (No 2) [2020] FCA 911
CONSUMER LAW – claim under Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (ACL) that respondents engaged in  misleading  or  deceptive conduct  – where parties established a corporate vehicle to operate radiology practices – whether respondents made misrepresentations as to the history, workload and planned expansion of a medical centre – whether respondents made misrepresentations regarding independence of lawyers and nature of proposed venture – where applicants’ evidence not reliable – claim dismissed
CONSUMER LAW – claim under ss 20 and 21 of the ACL that respondents conduct was unconscionable – whether respondents withheld information from applicants – whether respondents encouraged applicants to execute documents without legal advice – where applicants were not in a position of special disadvantage – where applicants chose to execute documents without legal advice – claim dismissed
EQUITY – claim that third respondent breached fiduciary duty owed to applicants – whether fiduciary duty arose before entering into a formal agreement – whether third respondent was a “promoter” owing fiduciary duties – whether fiduciary duties existed on the basis of a “prospective partnership” or because of a “special vulnerability” of the applicants – claim dismissed
CONSUMER LAW – claim that the cross-respondents engaged in  misleading  or  deceptive conduct  under the ACL – whether cross-respondents’ representations regarding pre-existing radiology practice were  misleading  – whether cross-respondents provided incorrect profit and loss statement and balance sheet to respondents – where balance sheet was materially incorrect – where it was not established that the cross-claimant would not have entered into transaction if related-party loan had been disclosed on balance sheet – cross-claim dismissed
CONTRACTS – claim that first cross-respondent breached “no-conflict” covenant in agreement – where first cross-respondent engaged in work for radiology practices without authorisation – where entitlement to damages for breach properly rested with corporate vehicle in liquidation rather than the cross-claimants – cross-claim dismissed
Competition and Consumer Act 2010 (Cth) s 137B, Sch 2, Australian Consumer Law, ss 4, 18, 20, 21, 236
Duties Act 1997 (NSW) ss 8, 9, 11; Fair Trading Act 1987 (NSW) s 28; Trade Practices Act 1974 (Cth) s 52

Ali v Australian Competition and Consumer Commission [2020] FCA 860
PRACTICE AND PROCEDURE – appeal – orders made at first instance – penalty and costs orders – application for stay of orders – test in Powerflex Services Pty Ltd v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 applied – whether orders would render appellants financially incapable of continuing the appeal – whether there is sufficient evidence to make out the ‘reason’ for a stay
In the Liability Judgment, the primary judge found that Ms Ali and the second appellant, Mr Charles Cameron, as sole director and national franchising manager respectively of Geowash (a hand car wash and detailing franchisor), had engaged variously in conduct that was misleading, unconscionable and in breach of good faith obligations under the Competition and Consumer Act 2010 (Cth) (CCA); Australian Consumer Law ss 3(3), 239, 243; Competition and Consumer Act 2010 (Cth) ss 83, 137H; Federal Court Rules 2011 (Cth) rr 36.08, 36.08(2)

Chan & Ors v MacArthur Minerals Limited & Ors [2020] QCA 143
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – SUMMARY DISPOSAL – where the primary judge struck out various paragraphs of the appellants’ third further amended statement of claim and dismissed the proceeding brought by the appellants against the respondents for misleading and deceptive conduct causing the appellants, in their personal capacity, to suffer loss and damage – where the personal capacity in which the appellants suffered loss or damage was pleaded to have arisen by orders made by the Supreme Court in 2014, consequent on a proceeding being brought by the liquidators of a company (of which the appellants were all directors) for insolvent trading, following the winding up of that company in 2010 – where the appellants have attempted on multiple occasions to produce a competent pleading, with the first pleading being struck out (with leave to re-plead) on the basis that the appellants failed to plead a causative relationship between the misleading and deceptive conduct and the alleged loss or damage – where the second pleading was also the subject a strike out application before the primary judge, after which the appellants were given “one last chance to plead causation” – whether the primary judge erred in striking out the relevant paragraphs of the third further amended statement of claim on the basis that the appellants failed to plead a sufficient causal nexus between the alleged misleading conduct and the loss and damage claimed – whether the primary judge erred in dismissing the proceeding in its entirety
Corporations Act 2001 Cth s 588G, s 588M

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