In the media – National

ACCC sues Japan’s NYK for ro-ro cartel
The competition watchdog has for the first time used its power to launch criminal prosecutions for cartel behaviour in a case filed against Japanese shipping group NYK. The ACCC criminal cartel powers attract stiff penalties including jail time, since they were granted in 2009 following the watchdog’s exposure of collusion between packaging giants Visy and Amcor (16 July 2016).  More...

Hong Kong Competition Commission exposes construction bid rigging
As a result of its inquiry, the HKCC has identified bid-rigging cartels as a priority for enforcement action and has undertaken to use the full extent of its powers to end such cartels. This is in line with the ACCC’s 2016 priorities, which continue to focus on pursuing cartel conduct across the economy (15 July 2016).  More...

AOC takes Telstra to court over 'misleading advertisements'
The Australian Olympic Committee takes Telstra to the Federal Court over allegations its advertisements are misleading and suggest the telecommunications company is a team sponsor (14 July 2016).  More...

ASIC uncovers 'misleading and deceptive' IPOs
An ASIC review of due diligence during the IPO process has uncovered prospectuses with "defective" levels of disclosure, 'box-ticking' approaches and superficial oversight at board level (15 July 2016).  More...

Van Dongen v Sims Metal Management Ltd [2016] WAIRC 327: Claims of Unconscionable conduct
The WA Road Freight Tribunal (the Tribunal) has recently dismissed claims made by five owner-drivers, that in relation to the request for a tender for the provision of scrap metal cartage services, the hirer engaged in unconscionable conduct and failed to negotiate in good faith (15 July 2016).  More...

What’s the score on third line forcing
Unlike many of Australia’s competition laws, third line forcing is prohibited per se, which means that it is prohibited regardless of its purpose, or effect on competition. However, businesses can obtain protection from action for third line forcing through what is, in most cases, a relatively straightforward process, known as notification. The ACCC has only revoked the protection provided under a third line forcing notification on a handful of occasions (13 July 2016).  More...

MA & J Tripodi Pty Limited sue Swan Hill Chemicals over failed crop
Twigg alleged Swan Hill Chemicals, which had been providing agronomy advice to the Tripodi family for 20 years, failed to advise Mr Tripodi to spray insecticide. He said Swan Hill Chemicals was negligent and had engaged in misleading and deceptive conduct in providing the wrong herbicides and failing to provide insecticides (13 July 2016).  More...

Unilever and Smith's pay penalties for misleading healthy food representations
Unilever Australia Limited (Unilever) and The Smith’s Snackfood Company Pty Ltd (Smith’s) have each paid a penalty of $10,800 following the issue of infringement notices by the Australian Competition and Consumer Commission for misleading healthy food representations (11 July 2016).  More...

ASIC takes NAB to Court over Alleged Rate Rigging
National Australia Bank (NAB) is now the third major bank to find itself in the Federal Court after the Australian Securities and Investments Commission (ASIC) announced through a media release on 7 June 2016 that it would be taking the NAB to court for alleged rate rigging (11 July 2016).  More...

Dick Smith leaders accused of inflating profits to meet expectations
The receivers also alleged that the banks, National Australia Bank and HSBC, were misled into providing loans to Dick Smith, foreshadowed claims against executive directors for misleading and deceptive conduct, and alleged that directors and officers breached their duties by failing, for example, to have proper reporting systems and controls in place (11 July 2016).  More...

Competition concerns with proposed acquisition by Borg of Alpine’s MDF manufacturing assets
The ACCC is encouraging feedback on the competition concerns outlined in its paper on the proposed purchase of the manufacturing assets of Alpine MDF Industries by The Borg Group. The ACCC’s preliminary view is that the transaction is likely to lessen competition in national markets for the manufacture and supply of raw and value-added MDF, leading to increased prices (07 July 2016).  More...

Metcash opening bid fails to win over ACCC
Metcash's opening bid for Woolworths' Home Timber & Hardware (HTH) chain has failed to convince the competition watchdog it's a better deal for shoppers, sending the pair back to negotiations. The ACCC has delayed any ruling on Metcash's proposed bid for HTH after requesting the addition of a series of special "undertakings" to address serious concerns it has raised over the merger's likely impact on competition (01 July 2016).  More (The Age)...  More (ACCC)...

Sea Swift’s acquisition of Toll Marine’s NT and FNQ marine freight assets authorised by the Australian Competition Tribunal
The ACCC Commissioner is disappointed that the Australian Competition Tribunal has authorised the acquisition, as the ACCC remains of the view that the acquisition is likely to have significant implications for future competition in scheduled marine freight services in the Northern Territory and far north Queensland (01 July 2016).  More...

In practice and courts, published reports

ACCC:  Statement of Issues released for proposed acquisition of Asciano
The ACCC has released a statement of issues on the proposed acquisition of Asciano by Qube, Brookfield and others. The ACCC has noted the following concerns (media release) which may lessen competition in stevedoring.
The ACCC invites further submissions from industry participants in response to the Statement of Issues. The closing date for submissions on the SoI is 10 June with a final decision due to be announced by 21 July. More...

Wholesale ADSL service declaration inquiry: discussion paper
Australian Competition and Consumer Commission: 4 July 2016
This ACCC discussion paper for the wholesale ADSL service declaration inquiry seeks industry views on whether the wholesale ADSL service should continue to be declared.  More...

ACCC: Market study on petrol prices in Cairns
The aims of this market study are to explain why prices are higher in Cairns relative to the larger capital cities and to explain each component of the prices paid at the bowser. The ACCC is using its compulsory information gathering powers under Section 95ZK of the Competition and Consumer Act 2010 to obtain information from participants in the Cairns fuel market. Submissions close on 31 July 2016.  More...


Dharmawardena v Advanced Hair Studio (Civil Claims) [2016] VCAT 1036
Laser therapy program for the regrowth of human hair – consumer alleges the trader orally promised that he would get a full head of hair within 9 months if he used the trader’s goods and services as directed – the alleged oral promise contradicted by the trader’s written contract – consumer terminates the contract before 9 months has elapsed – analysis of the trader’s obligations under the contract and the consumer’s rights of termination – unfair terms – Australian Consumer Law sections 23 and 24 – parts of the termination clause void – contract terminated by consumer entitling consumer to a refund of a proportion of the contract price – consumer’s allegation of  misleading  and deceptive conduct not proven – unconscionable conduct – Australian Consumer Law section 21.  

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Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752

Ian Robertson, National Managing Partner
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Paul Venus, Managing Partner, Brisbane
T: +71 7 3135 0613


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