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Inside track: Competition & Consumer

08 June 2021

#Competition & Consumer Law

Inside track: Competition & Consumer

In the media

Collective bargaining by small business facilitated by class exemption
Small businesses, franchisees and fuel retailers can use the ACCC’s class exemption for collective bargaining. This class exemption, which is the first made by the ACCC, will allow collective negotiation without first having to seek ACCC approval (03 June 2021).  More...

Country Care, CEO and former employee acquitted of criminal cartel offences
A jury in the Federal Court acquitted, rehabilitation and aged care aids company The Country Care Group Pty Ltd, its CEO Robert Hogan and a former employee Cameron Harrison of eight criminal cartel offences. This case is the first contested criminal prosecution under the criminal cartel provisions of the Competition and Consumer Act (02 June 2021).  More...

Dodo and iPrimus to pay $2.5m for misleading NBN speed claims
After an ACCC investigation, the Federal Court ordered Dodo Services Pty Ltd (Dodo) to pay $1.5 million and Primus Telecommunications Services Pty Ltd (iPrimus) to pay $1 million in penalties for making misleading claims about their NBN broadband speeds. Dodo and iPrimus are both part of the Vocus Group (02 June 2021).  More...

Forex CT ordered to pay $20 million penalty and sole director disqualified, fined $400,000
The Federal Court has ordered Forex Capital Trading Pty Ltd (Forex CT) pay a $20 million penalty for engaging in systemic unconscionable conduct, paying conflicted remuneration to its team leaders and account managers and failing to act in the best interests of its clients. Forex CT engaged in a system of unconscionable conduct which included making misleading or deceptive representations to clients (02 June 2021).  More...

A2 Milk class action
The A2 Milk Company Ltd share price is trading lower after Slater & Gordon Limited advised that it was looking into a potential class action. The law firm is alleging that the infant formula company may have engaged in misleading or deceptive conduct in breach of the Corporations Act (31 May 2021).

New regulator needed to prevent rapacious behaviour of health insurers
AMA President said the proposed buying group will potentially wield significant market power in some areas – particularly in relation to services provided by medical specialists. This proposal could effectively grant Honeysuckle Health and NIB the ability to compete directly with existing buying groups that represent smaller funds – funds which are already struggling (28 May 2021).  More...

Australia considers capping class action funders’ fees
Australia is considering capping fees for litigation funders and lawyers, and guaranteeing a minimum rate of return for plaintiffs, in its latest clampdown on the industry following a surge in costly class action lawsuits. Earlier this year, the government proposed legislation to permanently lower the bar on listed companies’ so-called “continuous disclosure” obligations, protecting companies and their officers against liabilities for misleading and deceptive conduct unless “fault” is proven (28 May 2021).  More...

Mosaic Brands pays $630,000 in penalties over COVID-related 'health essentials'
Mosaic Brands Limited has paid penalties totalling $630,000, and admitted that it breached the Australia Consumer Law in its promotion of pandemic-related ‘Health Essential Products’. The ACCC issued five infringement notices to Mosaic Brands in respect of alleged false or misleading representations relating to hand sanitiser and face masks advertised (27 May 2021).  More...

Peter Evans Chef Pty Ltd fined $79,920 for alleged unlawful advertising
Fines were issued to the company for the alleged advertising of therapeutic goods that were not, at the time of advertising, included in the Australian Register of Therapeutic Goods. The TGA also issued a directions notice to the company and to sole Director, Peter Evans, for removal of alleged non-compliant advertising (25 May 2021).  More...

Increasing transparency of home care prices for senior Australians
The Australian Government is responding to the Royal Commission into Aged Care Quality and Safety by increasing transparency and information on home care prices (24 May 2021).  More...

Mitsubishi loses Supreme Court appeal on “misleading and deceptive” fuel consumption claim
A landmark ruling in the Supreme Court has set a remarkable precedent for the fuel consumption ratings for more than 15 million new cars sold in Australia over the past 20 years (24 May 2021).  More...

Practice and Regulation

ACCC seeks leave to appear in Epic v Apple appeal
The ACCC has sought leave to appear as ‘amicus curiae’ or as non-party in Epic’s appeal to the Full Federal Court against the Court’s decision to stay Epic’s proceedings against Apple.
Epic has alleged Apple engaged in anti-competitive conduct in relation to the App Store. Apple sought to stay proceedings on the ground that an agreement between them required disputes to be determined in California. Justice Perram granted the stay in April. Epic lodged a notice of Appeal on 14 April. A hearing is scheduled for 9 June 2021.

ACCC Consultation: Facebook advertisements
Closes 1 September 2021 - The ACCC is aware of advertisements on Facebook about cryptocurrency products featuring the name or image of an Australian public figure. These advertisements might look like articles or posts in your Facebook newsfeed. We are concerned that the advertisements may be false or misleading.
If you see one of these advertisements on Facebook, please take a screenshot and submit it to the ACCC.

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 18 March 2021 the Senate agreed: That the resolution of appointment of the Select Committee on Financial Technology and Regulatory Technology be amended as follows: That the committee present its final report on or before 30 October 2021.


Freedom Foods Pty Ltd v Blue Diamond Growers [2021] FCAFC 86
CORPORATIONS - application for leave to appeal from interlocutory decision - appeal from interlocutory decision not to restrain arbitration in California - where parties entered into licence agreement to manufacture and sell almond milk products - where licence agreement provides for arbitration of any controversy between parties in California - where respondent commenced arbitration on basis of licence agreement - whether licence agreement is franchise agreement for purpose of Franchising Code of Conduct - whether arbitration clause of no effect due to contravention of Code - where Code provides that franchise agreement must not contain clause requiring arbitration in jurisdiction outside Australia - consideration of definition of franchise agreement in Code - leave to appeal granted - appeal dismissed.
Competition and Consumer Act 2010 (Cth) s 51AE; Federal Court of Australia Act 1976 (Cth) s 43
International Arbitration Act 1974 (Cth) s 7; Competition and Consumer (Industry Codes - Franchising) Regulation 2014 (Cth) Schedule 1 (Franchising Code of Conduct) cll 2, 3, 5, 8, 12.

Warehousing Equipment Pty Ltd v Troden Equipment Pty Ltd [2021] ATMO 43
Re: Opposition by Warehousing Equipment Pty Ltd to registration of trade mark application number 1975567 (12) - X-CART with device - in the name of Troden Equipment Pty Ltd.
It can be inferred from the Aggravating Conduct that the Applicant intends to mislead or deceive by using the X-Cart Mark as it has done.
By reason of the matters set out in paragraphs 10 to 13, the Applicant has: A. in trade or commerce, engaged in conduct that was misleading and deceptive, and likely to mislead or deceive, in contravention of section 18 of the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL); and B. in trade or commerce, made false and misleading representations in contravention of sections 29(1)(g) and 29(1)(h) of the ACL.

Tour Squad Pty Ltd v Fifth Amendment Entertainment Inc (No 2) [2021] FCA 546
COMMERCIAL LAW – contract for performance by music artist – whether agreement arose in course of negotiations before final contract – whether Binder Agreement constituted final agreement.
CONSUMER PROTECTION – alleged misleading or deceptive conduct in pre-contract negotiations – alleged representation that respondents would undertake music performances in Australia – representation dependent on alleged binding effect of Binder Agreement – representations not made out.
COMMERCIAL LAW – contract – breach of contract – failure by innocent party to accept repudiation or breach and to terminate contract – failure to terminate contract prevents claim for expectation losses.
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) s 18.

S Changizi v H Rizaie [2021] NSWSC 613
Plaintiff fails in his claim for breach of fiduciary duties. Defendant fails in his cross-claim in misleading and deceptive conduct. Parties to make submissions as to costs.
CONSUMER LAW — misleading or deceptive conduct — reliance upon misleading representations — representation as to acquisition and contribution of assets into the company — where representation not falsified.
EQUITY — fiduciary duties — conflict of interest and duty — where director alleged to have burnt down the business premises — where such finding was a necessary step to finding breach of fiduciary duties.

Schultz v Pipe Safe Plumbing Pty Ltd (Building and Property) [2021] VCAT 520
Misleading and deceptive conduct – agreement for plumbing work - applicants engaging Respondent plumbing company to clear blocked sewer pipe - plumber misrepresenting extent of work required – inflated quotation accepted by the Applicants – scope of works represented to be necessary not done and said not to be necessary – Respondent nonetheless deducting full amount of quotation from the Applicants’ account without their knowledge or consent – Respondent later falsely claiming that work incomplete – restitution.
Order the Respondent to pay to the Applicants $10,098.00 plus the issuing fee of $217.70, making together the sum of $10,315.70.

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