In the media

Underquoting: Real estate agency Fletcher and Parker to fight ‘off the rails’ case
A real estate agency accused of extensive underquoting by Consumer Affairs Victoria has told a judge it will fight the case. Fletcher and Parker (Balwyn) Pty Ltd, accused of misleading conduct on 25 properties, complained the case was “off the rails” at the Federal Court on Friday morning (10 February 2017).  More...

Confusion about broadband claims prompts ACCC guidance
ACCC consultation on fixed broadband speeds has found eighty percent of consumers are confused and want broadband speed information to be presented in a simple, standardised format to enable them to easily compare offers. The ACCC has today published principles to help ensure internet service providers’ claims about broadband speeds aren’t misleading under the Australian Consumer Law (10 February 2017).  More...

ACCC will not oppose Ruralco’s proposed acquisition of TP Jones
The ACCC has announced that it will not oppose the proposed acquisition of TP Jones Pty Ltd by Roberts Limited, which is a wholly-owned subsidiary of Ruralco Holdings Limited.  The ACCC found that although Roberts and TP Jones directly compete in all of the affected local areas, farmers in those areas have other alternatives (09 February 2017).  More...

No power to bargain for dairy farmers, ACCC told
Practical examples demonstrating how the laws of supply and demand were simply not delivering a fair farmgate milk price were provided by frustrated and desperate producers this week as part of a fair trading investigation. Lack of bargaining power in contract negotiations, milk prices under the cost of production, lack of information about where profits flow through the supply chain and the fact dairy farmers are expected to wear risks long after milk has left the farm were the core issues (07 February 2017).  More...

Apple argues Australian bank bargaining cartel is centred on fee avoidance
Apple has argued in its latest submission to the Australian Competition and Consumer Commission (ACCC) that the collective negotiating between four of Australia's largest banks is not about access to the iPhone's near-field communication (NFC) technology to stir healthy competition, rather it is an attempt to avoid paying the fees associated with using Apple Pay (06 February 2017).  More...

Sims: ACCC too soft on penalties
The Chairman of the ACCC, Rod Sims, has argued that the ACCC has been too soft on penalties in the past. The ACCC will, in future, seek higher penalties. In addition, in response to the decision in Flight Centre, which Sims claims has 'profound implications' for business, the ACCC will launch a review across the e-commerce sector (05 February 2017).  More...

ACCC releases quarterly report on the NBN wholesale market
The Australian Competition and Consumer Commission has released its quarterly National Broadband Network Wholesale Market Indicators Report for the period ending 31 December 2016. While still early days in the acquisition of services over the NBN, it is pleasing to note that competitors are making inroads into Telstra’s traditional dominance of broadband services in regional areas (02 February 2017).  More...

Carnell report into banking practices released
The Turnbull Government today released the report of the Australian Small Business and Family Enterprise Ombudsman, Kate Carnell AO, into the small business lending practices of the major banks and other lenders (03 February 2017).  More...  More...

COBA:  Unfair rules harm banking competition
More proof has emerged that different rules on mortgages for large and small banking institutions are distorting competition. A new paper from the Bank of England about bank capital requirements confirms the Financial System Inquiry’s (FSI) fears about allowing large banks to use a much smaller portion of equity funding for mortgages than smaller banking institutions (01 February 2017).  More...

PM’s reforms can create jobs and improve competitiveness
The Prime Minister has outlined a suite of policy reforms that have the potential to create jobs and improve Australia’s economic competitiveness, the Australian Chamber of Commerce and Industry said today (01 February 2017).  More...

In practice and courts, published reports

ACCC Dairy Inquiry
The ACCC is holding public inquiries in relation to the Dairy Inquiry from 6 February to 22 March 2017. It has been reported that up to 330 dairy farmers have given evidence in the first two days of ACCC hearings in Queensland and NSW.

Have your say on the Australian Consumer Law
The ACL review is being undertaken to establish whether the law has been effective and how it can be improved to benefit traders and consumers, without imposing unnecessary red tape.  The Australian Consumer Law Review Interim Report is open and can be accessed at consumerlaw.gov.au.  Formal submissions and comments are encouraged.  Submissions closed on 9 December 2016 ahead of the final report in March 2017.

Senate Economics Committee receiving submissions on MMP bill
The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was referred to the Senate Economics Committee on 1 December 2016. The Committee is due to report on 16 February 2017.  More...

Inquiry into small business loans
Australian Small Business and Family Enterprise Ombudsman: 3 February 2017
This inquiry found the big four banks consistently engage in practices that have caused significant harm to some small business customers.  More...

Broadband Speed Claims – Consultation outcomes report
Greater transparency around broadband speeds will enable consumers to make clearer comparisons on product choices, further encourage ISPs to compete on speed and save consumers money. The ACCC consultation received more than 400 responses from consumers and industry participants on its discussion paper last year (10 February 2017).  More...

Cases

Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 3) [2017] FCA 60
TRADE MARKS – claims for infringement of trade marks – nature of the market for electrical accessories – whether first respondent’s mark should be cancelled – whether first respondent infringed applicants’ marks – whether first respondent’s use trade mark use.  TORTS – passing off – whether respondents’ conduct constituted passing off.  TRADE PRACTICES – whether respondents’ conduct misleading and deceptive – whether representations about goods false or misleading.
Competition and Consumer Act 2010 (Cth) Sch 2 ss 2, 18, 29(1) and 236; Evidence Act 1995 (Cth) s 140; Trade Marks Act 1995 (Cth) ss 6, 10, 17, 44, 57, 60, 62A, 88(1), 88(2), 120, 122(1) and 190(a). 

Bartlett v Weatherill [2017] NSWSC 31
CONSUMER LAW – measure of damages as a result of purchase of aircraft in reliance on misleading representation – amount paid exceeded estimate given wrongdoer – value of aircraft exceeded amount paid.  DAMAGES – wronged party to be compensated only if suffered actual loss – no actual loss as aircraft’s value exceeded amounts paid – judgment entered in favour of wronged party set aside.   ADMINISTRATIVE LAW – no utility in remitting matter to Local Court as application of correct principles produced a single result.

Ning Shen v ASF Properties Pty Limited & Ors [2017] NSWDC 11
Misleading and deceptive conduct; action in deceit – s 52 of the Trade Practices Act 1974 (Cth), (“the TPA”) and alleges that the first, second, third and fourth defendants made certain representations to the plaintiff that were misleading or deceptive, or likely to mislead or deceive him, in respect of the purchase of a property at Breakfast Point.

Khattab v Grays (Vic) Pty Limited (Civil Claims) [2017] VCAT 135
Auction sale of vehicle – on-line auction – vehicle advertised as a 2012 vehicle but was a 2010 vehicle – misleading or deceptive conduct – Australian Consumer Law (Victoria) ss 18(c), 237, 243.

Mandy Lee Real Estate Pty Ltd v Coastal Properties Pty Ltd & Anor [2017] VCC 7
Whether real estate agent entitled to commissions under exclusive agency agreement – when contract becomes “unconditional” - when commission is earned – when commission is payable – where original contracts of sale rescinded – whether developer engaged in unconscionable conduct: Sale of Land Act 1962 (Vic); Transfer of Land Act 1958 (Vic); Fair Trading Act 1999 (Vic); Competition and Consumer Act 2010 (Cth); Trade Practices Act 1974 (Cth).

Consumer Affairs Victoria v Talia (Review and Regulation) [2017] VCAT 146
Estate Agents Act 1980 s12; Victorian Civil and Administrative Tribunal Act 1998 s133(1), s137(1)(f); application for contempt pursuant to s137 Victorian Civil and Administrative Tribunal Act 1998; alleged failure to comply with prior order of the Tribunal; alleged contravention of s12 Estate Agents Act 1980; Acting as estate agent or agent’s representative while prohibited by Order of Tribunal; Respondent guilty of contempt as charged. No remorse or insight; Fined.

Third Voice Studio Pty Ltd v Insurance Australia Ltd (Civil Claims) [2017] VCAT 138
Insurance Policy for breakage of internal glass, damage to one-piece toughened-glass tables, definition of “breakage”, alleged breaches of ACL Sections 18, 60 and 61. Further, the Points of Defence denied misleading or deceptive conduct or the breach of the Australian Consumer Law asserted by the Applicant.

Ambani v Australian Education Union (Civil Claims) [2017] VCAT 131
Claim under section 182 of the Australian Consumer Law and Fair Trading Act 2012 (Vic); whether the dispute is a consumer and trader dispute under s182; respondent claims by way of defence that the Tribunal does not have jurisdiction to hear and determine the claim; whether the Tribunal has jurisdiction to hear and determine the claim under s184; whether the dispute is federal in nature; whether the dispute arose under federal law; whether the matter arose under a federal law by reason of the source of respondent’s defence to the claims; whether the federal defence was colourable; Fair Work (Registered Organisations) Act 2009 (Cth); Education and Training Reform Act 2006; Qantas v Lustig [2015] FCA 253; (2015) 228 FCR 148.

Contacts:
Melbourne
Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
Sydney
Ian Robertson, National Managing Partner
T: +61 2 8083 0401
Brisbane
Paul Venus, Managing Partner, Brisbane
T: +71 7 3135 0613
 
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. 

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