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Inside track: Competition & Consumer

08 December 2020

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Court action against Hutchinson and CFMMEU over alleged boycott
The ACCC has instituted Federal Court civil proceedings against construction company J Hutchinson Pty Ltd (Hutchinson) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) over alleged boycott conduct at a building site in Brisbane (04 November 2020).  More...

Slater & Gordon launches class action against 'junk' ANZ insurance
Law firm Slater & Gordon has commenced proceedings against ANZ for issuing what has been labelled "junk" insurance to consumers. Earlier in 2020, the Federal Court approved a $49.5 million settlement with NAB and MLC Limited in a similar case. Slater & Gordon's class action alleges that the respondents engaged in misleading or deceptive conduct in relation to the sale of the policies to customers (04 December 2020). More...

ACCC accepts Toyota’s undertaking to ‘review and improve’ compliance processes
Toyota Australia will not have to “pay a monetary penalty” for engine problems linked with diesel particulate filters found in hundreds of thousands of its vehicles. Toyota has now acknowledged “concerns that consumers can be misled about how their consumer guarantee rights under the Australian Consumer Law interact with manufacturer’s warranties”. (02 December 2020).   More...

Senior Advantage misleads members on dud discounts, CHOICE investigation reveals
A new website promises to save older Australians significant sums of money. But the deals on offer were already out there (02 December 2020).  More...

ASIC accused of acting too slowly after Sterling First retiree housing group collapses
In a report to creditors, KPMG wrote potential breaches include six areas including offering securities without a current disclosure document, advertising or other promotional material for a financial product not referring to a product disclosure statement, and misleading or deceptive conduct (26 November 2020).  More...

ASIC commences civil proceedings against CBA
ASIC said it would be alleging that from 1 December, 2014 to 31 March, 2018, being within the six-year limitation period, the bank engaged in conduct that contravened financial services laws. It said that specifically on 12,119 occasions CBA: made a misleading representation in contravention of s12DB(1)(g) of the ASIC Act;  and engaged in misleading or deceptive conduct, or conduct that was likely to mislead or deceive, in contravention of s12DA(1) of the ASIC Act.  More...

Criminal cartel charges laid against pharmaceutical ingredient company and its former export manager
The ACCC alleges Alkaloids of Australia and overseas suppliers of the ingredient SNBB (hyoscine butylbromide) ‘made and gave effect to arrangements to fix prices, restrict supply, allocate customers and/or geographical markets, and/or to rig bids for the supply of SNBB to international manufacturers of generic antispasmodic medications’ (30 November 2020).  More...

Travel problems top list of COVID-19-related reports
New figures released show COVID-19-related consumer reports make up the majority of the 109,446 complaints the ACCC received in the first ten months of this year. Common misconduct received complaints about during the pandemic includes businesses misleading consumers about their right to a refund (24 November 2020).  More...

Telstra to face $50m fine for unconscionable conduct 'right off the scale'
Telstra admits to unconscionable conduct during its sales of mobile phone plans to Indigenous consumers, who the ACCC says were exploited into signing up to unaffordable contracts and then aggressively pursued by debt collectors (26 November 2020). More...

Slater and Gordon files class action against G8 Education
Australia's largest childcare centre operator G8 Education has been hit with a class action lawsuit by Slater and Gordon on behalf of shareholders, alleging G8 contravened its continuous disclosure obligations by failing to disclose to the market information relevant to its Full Year 2017 financial performance, and engaged in misleading or deceptive conduct." (23 November 2020).  More...

Practice and regulation

ACCC Note: Screen scraping warnings not anti-competitive
The ACCC, responding to questions on notice as part of a parliamentary inquiry by the Senate Select Committee on Financial Technology and Regulatory Technology, said that “statements or warnings regarding potential security or safety risks associated with screen scraping and sharing passwords … does not appear to have the purpose or effect of substantially lessening competition.” On 24 April 2020, the reporting date was extended from the first sitting day in October 2020 to 16 April 2021.

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...


Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708
CONSUMER LAW – services supplied to a consumer facing foreclosure on a home loan mortgage – alleged breach of contract and failure to comply with consumer guarantees – alleged misleading and deceptive conduct – alleged unconscionable conduct – nature and scope of services supplied – where the consumer disclosed to the supplier that the purpose of seeking services was to retain her home – whether supplier agreed or represented that its services would provide consumer with a long term solution that would enable the consumer to retain her home – whether supplier agreed or represented that supplier would procure a refinance of the consumer’s home loan – whether supplier knew that consumer would be unable to maintain loan repayments and that the supplier’s services would not prevent the bank from taking possession of the consumer’s home – whether the removal of a credit impairment from the consumer’s credit file provided any benefit to the consumer in retaining her home
PRACTICE AND PROCEDURE – application to re-open case after judgment reserved – applicable principles – application refused
STATUTORY INTERPRETATION – meaning of the phrase “financial services” in s 12BAB of the Australian Securities and Investments Commission Act 2001 (Cth) – whether a service involving negotiations with a bank to defer recovery action and to agree temporary reductions in repayments is a financial service
Australian Securities and Investments Commission Act 2001 (Cth) ss 12AB, 12BAA, 12BAB, 12CB, 12DA, 12ED
Competition and Consumer Act 2010 (Cth) ss 84(2), 130A, 131A, 137B, 139B(2)
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 2, 18, 21, 22, 60, 61, 236, 267(3), 268, 275 

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 3) [2020] NSWSC 1721
Leave to amend granted. See paragraph [112].
CIVIL PROCEDURE – leave to amend technology and construction list cross-claim response – where cross-defendants wish to amend to raise new defence to claims they had engaged in misleading or deceptive conduct during the course of a construction project – where new defences seek to rely on alleged misleading representations made to the cross-defendants by the cross-claimants prior to entry into the project contract – where new defences seek to limit damages recoverable by the cross-claimants on their misleading and deceptive conduct claim – whether defences should be struck out as contrary to public policy – whether arguable that parties can agree to limits on their liability under the Australian  Consumer Law  – leave to amend granted

Xu v Lindsay Bennelong Developments Pty Limited [2020] NSWSC 1692
LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase — Alleged breach of fundamental term — Remedies CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Remedies. Competition and Consumer Act 2010 (Cth), ss 84, 87CD, 137B; sch 2 ss 4, 18, 29, 30, 236, 237, 243

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