In the media

Protection and action among highlights of Consumer Affairs Victoria's annual report
Action on underquoting, increased services for vulnerable Victorians and a new building dispute resolution service are among the success stories highlighted in the latest Consumer Affairs Victoria (CAV) annual report (19 October 2017).  More...

7-Eleven franchisee accused of terminating employee who didn’t repay leave entitlements
The current director and shareholder Madhav Ponnada and Balaji Australia Pty Ltd will also face the Federal Circuit Court concerning allegations that false and misleading records were created during the employment of two employees and were later provided to Fair Work Inspectors during the investigation (19 October 2017).  More...

ACCC welcomes new era in competition law
The Competition and Consumer Amendment (Competition Policy Review) Bill has now passed Parliament. The Competition Policy Review legislation contains a broad range of amendments to the Competition and Consumer Act 2010 in areas such as cartels, price signalling and concerted practices, exclusionary provisions, third line forcing, resale price maintenance, merger authorisations and non-merger authorisations, notifications and class exemptions, access and evidentiary provisions (18 October 2017).  More...

Crown Casino 'tampered with pokies, ignored drug use and violence'
In a statement to the ASX, Crown rejected the allegations and called on Wilkie to immediately provide to the relevant authorities all information relating to the matters alleged. Last month, it was announced that James Packer's Crown Resorts and Aristocrat Leisure were the subject of a landmark legal case which promises to highlight the "deceptive and misleading behaviour" of pokies manufacturers and venues. If successful, the litigation would have ramifications for the design of all pokie machines in the industry (18 October 2017).  More...

Electricity report details affordability, competition issues
The Retail Electricity Pricing Inquiry preliminary report details the ACCC’s initial assessment of information it has gathered including documents and data from industry, consumers, businesses, representative groups and other government and non-government organisations. The ‘big three’ vertically integrated gentailers, AGL, Origin, and EnergyAustralia, continue to hold large retail market shares in most regions, and control in excess of 60 per cent of generation capacity in NSW, South Australia, and Victoria making it difficult for smaller retailers to compete (16 October 2017).  More...

The biggest and saddest problem with the ACCC's new report on energy prices is we knew its findings 5 years ago
When the Australian Consumer and Competition Commission (ACCC) released its 175-page Retail Electricity Pricing Inquiry preliminary report, chairman Rod Sims said the main reason bills have gone up was higher network costs (16 October 2017).  More...

ACCC concludes investigation into ALDI 'flushable' wipes
The ACCC has completed its investigation into ALDI’s ‘flushable’ wipes and will take no further action after ALDI stopped selling its personal hygiene wipes and removed potentially misleading claims from its bathroom cleaning wipes packaging (13 October 2017).  More...

Lack of competition driving high Brisbane petrol prices
The ACCC has released the findings of its study into the Brisbane petrol market, which shows a lack of competition is causing Brisbane motorists to pay more for petrol than in Sydney, Melbourne, Adelaide and Perth (09 October 2017).  More...

In practice and courts, published reports

ACCC: Online tool for anonymous agricultural complaints
The ACCC has launched a new online tool for the agriculture sector to anonymously report concerns about competition or fair trading issues. ACCC Commissioner Mick Keogh will announce the tool while addressing the Horticulture Branch of the NSW Farmers Association (12 October 2017).  More...

Draft guidance on the application of the ACL to charities, not-for profits and fundraisers
Consumer Affairs Australia and New Zealand (CAANZ) seeks your views on draft guidance on the application of the Australian Consumer Law (ACL) to the activities of charities, not-for-profit entities and fundraisers. The draft guidance sets out general principles, supported by examples, to assist the sector in understanding its obligations under the ACL. The consultation closes on 27 October 2017.  More...

Report on the Brisbane petrol market
Australian Competition and Consumer Commission: 09 October 2017
Under new arrangements to monitor the prices, costs and profits of unleaded petroleum products, the ACCC has prepared this short report on the Brisbane petrol market.  More...

NSW Fair Trading: New laws to target ticket scalping
The NSW Government is proposing changes to legislation to address unfair ticket sale practices caused by scalping. Ticket scalpers systematically buy large numbers of sport and entertainment event tickets with the sole aim of re-selling at a high profit above the initial purchase price. The reforms would require greater transparency over the number of tickets available for general purchase at certain events. Amendments to the Fair Trading Act 1987 are expected to be introduced into the NSW Parliament in October 2017.  More...

NSW Fair Trading: Inquiry into NSW retirement villages
The inquiry will review the protections offered to residents, and ensure that Fair Trading has the necessary powers to make sure retirement village operators are complying with the law. The investigation will look at concerns raised about the fairness and transparency of business practices of retirement villages in NSW. The final report and recommendations from the inquiry are due to be completed by 15 December 2017.  More...  Make online submission

Cases

Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159
COMPETITION – pecuniary penalties – principles governing the imposition of pecuniary penalties under s 76 of the Competition and Consumer Act 2010 (Cth) – whether a single joint and several penalty can be imposed on more than one contravenor – consideration of the course of conduct principle – whether the making of and giving effect to the provisions of a contravening contract ought to be separately penalised or treated as a single course of conduct – whether primary judge erred in his treatment of issues of market harm and financial benefits.  

Slee v De Graaf; Slee v Clough; Slee v Davies [2017] NSWCATAP 199
CONSUMER LAW – misleading or deceptive statements – statements made in presentations to prospective students considering enrolling in a makeup and beauty course - different versions of course director’s statements – claimant’s version preferred - whether civil standard of proof satisfied – whether contradictory evidence not taken into account – appeal dismissed.
DAMAGES AWARD – Calculation – Failure to refer to competing evidence – remitted for reconsideration.

Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited [2017] NSWDC 279
Judgment for the plaintiff against the defendant in damages for misleading or deceptive conduct within the meaning of the Australian Consumer Law for $823,172.93.
SHIPPING AND NAVIGATION - Bills of lading - House bill - Ocean bill - Distinction between - Where two bills issued in respect of one cargo - House bill with appearance of ocean bill issued by freight forwarder - Ocean bill issued by actual carrier - Sea Carriage Documents Act 1997 - Characteristics of a bill of lading - Bearer bills of lading - Right to delivery - Whether unendorsed bills of lading conferred security interest.
CONSUMER LAW - Misleading or deceptive conduct - Whether freight forwarder misrepresented house bills as bills of lading.
BREACH OF WARRANTY OF AUTHORITY - Cause of action – Belief of plaintiff in existence of authority - Inducement for plaintiff to enter into contract with third party- Whether loss caused by freight forwarder’s breach of warranty.
DAMAGES - Statutory - Competition and Consumer Act 2010 - Measure of damages - Identification of loss or damage required - Causation of loss or damage - Quantification of damage caused "by conduct of" person in breach of s 18.
DAMAGES - Common Law - Breach of warranty of authority - Measure of damages - Whether plaintiff entitled to contractual or court rate of interest. Australian Consumer Law (Cth).

Legislation

Competition and Consumer Amendment (Competition Policy Review) Bill 2017
Finally passed both houses: 18/10/2017 - Amends the: Competition and Consumer Act 2010 to: clarify that ‘competition’ includes competition from goods and services that are capable of importation, in addition to those actually imported; confine the application of cartel conduct provisions to conduct affecting competition in Australian markets; change the scope of the joint venture exceptions; remove provisions relating to the anti-competitive disclosure of pricing and other information (known as price signalling); prohibit a corporation from engaging in a concerted practice that has the purpose, effect or likely effect of substantially lessening competition; remove the separate prohibition on exclusionary provisions; define ‘contract’ and ‘party’ to include covenants; increase the maximum penalty applying to breaches of the secondary boycott provisions; prohibit third line forcing only where it has the purpose, effect or likely effect of substantially lessening competition; enable a corporation or person to notify the Australian Competition and Consumer Commission (ACCC) of resale price maintenance conduct, as an alternative to seeking authorisation from the commission for such conduct; provide an exemption from the resale price maintenance prohibition for conduct between related bodies corporate; consolidate authorisation provisions, including those relating to mergers, into a single authorisation process; grant the ACCC with ‘class exemption’ and ‘stop notice’ powers; provide for reviews by the Australian Competition Tribunal of merger authorisation determinations by the ACCC; enable a party bringing certain proceedings to rely on both admissions of fact and finding of fact made in certain other proceedings; extend the ACCC’s power to obtain information, documents and evidence in relation to investigations of alleged contraventions or court enforceable undertakings and merger authorisation determinations, and introduce a ‘reasonable search’ defence in relation to the failure or refusal to comply with a notice to produce such documents; implement recommendations made by the Productivity Commission in relation to the National Access Regime; streamline administration of the Act, particularly in relation to requirements of the Australian Consumer Law; and make consequential amendments; and Radiocommunications Act 1992 to make consequential amendments.


Contacts:

Melbourne

Howard Rapke, Managing Partner, Melbourne
T: +61 3 9321 9752
E: howard.rapke@holdingredlich.com

Sydney

Ian Robertson, National Managing Partner
T: +61 2 8083 0401
E: ian.robertson@holdingredlich.com

Brisbane

Paul Venus, Managing Partner, Brisbane
T: +71 7 3135 0613
E: paul.venus@holdingredlich.com

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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