In the media

ACCC guns for Andrew Forrest over call for iron ore 'cartel'
The Australian Competition and Consumer Commission is investigating a call by Andrew Forrest for iron ore producers to drive up the price by capping production, a practice federal Treasurer Joe Hockey said would be akin to cartel behaviour (25 March 2015).  More...

Fortescue releases statement on Forrest's iron ore comments
Fortescue Metals has released a statement relating to Chairman, Andrew Forrest's, comments relating to capping iron ore production. In it, reference is made to the provisions of section 51(2)(g) of the Act dealing with goods exclusively exported. The ACCC has observed that iron ore is not exclusively exported from Australia.  More...  More...

Passengers to share in airline price fixing lawsuit
The class action reportedly follows US government investigations into price fixing in the air cargo industry, covering flights between the US and Australia or Asia since 2000. The lawsuit claims the airlines agreed to fix the prices of transpacific flights, so passengers may have paid too much for their flights (25 March 2015).  More...

Federal Court orders $500,000 penalty for cleaning franchise
The Federal Court has ordered a $500,000 penalty against South East Melbourne Cleaning Pty Ltd for contraventions of the Australian Consumer Law (ACL). The Court declared that Coverall Melbourne had engaged in unconscionable conduct, made false or misleading representations, and had contravened the Franchising Code of Conduct in its dealings with two individuals who were prospective franchisees and subsequently signed up to the cleaning franchise (24 March 2015).  More...

Business awaits Ian Harper's report on competition policy
Some of the more contentious recommendations, including amendments to Section 46 of the Competition and Consumer Act, which would introduce an effects test to existing misuse of market power rules, will be lobbied the hardest – and loudest – by big and small business (22 March 2015).  More...

Product safety and advertising in ACCC’s crosshairs
Australian Competition and Consumer Commission chairman Rod Sims has named product safety, truth in advertising and misuse of market power among the watchdog’s priorities for 2015 (23 March 2015).  More...

Chairman outlines strong Australian Consumer Law record
Chairman Rod Sims outlines the ACCC's consumer protection activities at the National Consumer Congress in Sydney. ACCC investigated many matters and instituted proceedings in eight new competition cases and 20 consumer protection matters in the Federal Court (20 March 2015).  More...  More...

Protecting small businesses against unfair contract terms
Small businesses often lack the time, legal expertise or bargaining power to resist enforcement of unfair terms against them. The Australian Small Business Commissioner has observed instances of misuse of market power in contracting of telephone and internet services; office or commercial leasing equipment; and retail outlet leases (20 March 2015).  More...

ACCC appeals Pfizer decision
The ACCC has lodged a Notice of Appeal from the Federal Court's decision on 25 February 2015 dismissing the ACCC's proceedings against Pfizer Australia Pty Ltd (Pfizer). The ACCC had alleged that Pfizer had contravened the Competition and Consumer Act 2010 (the Act) by misusing its substantial market power and engaging in exclusive dealing conduct for the purpose of substantially lessening competition in relation to particular cholesterol lowering products (18 March 2015).  More...

Federal court finds Safety Compliance misled small businesses into purchasing safety products
The Federal Court has declared that Safety Compliance Pty Ltd (Safety Compliance) contravened the Australian Consumer Law (ACL) and the Trade Practices Act 1974 (Cth) (now called the Competition and Consumer Act 2010 ) (the Act) by making false or misleading representations and engaging in misleading or deceptive conduct directed towards small businesses in connection with the supply of safety wall charts and first aid kits (17 March 2015). More...

Cases

Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2015] FCA 274
CONSUMER LAW – penalty hearing – admitted contraventions of – s 18 of the ACL – misleading or deceptive conduct – s 29 of the ACL – false or misleading representations – representations concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy – conduct by agent telemarketer – conduct by principal supplier of goods or services – telephone representations – representations in written material – promotion of electricity and/or gas plans – admitted contraventions – whether orders sought by consent appropriate in the circumstances. ENERGY AND RESOURCES – National Energy Retail Law – explicit informed consent – s 38 of the National Energy Retail Law – admitted contraventions – penalty hearing – failure to obtain explicit informed consent before transferring customers from existing retailer – failure to obtain explicit informed consent before entering customer into market retail contract – whether orders sought by consent appropriate in the circumstances.  More...

Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (in liq) (formerly known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) (No 2) [2015] FCA 257
TRADE AND COMMERCE – contraventions of Australian Consumer Law – false and misleading representations – unconscionable conduct – breaches of the Franchising Code of Conduct – appropriate quantum of pecuniary penalty for company in liquidation – general deterrence. Competition and Consumer Act 2010 (Cth); Trade Practices Act 1974 (Cth).  More...

BOQ Equipment Finance Ltd v Scott & Ors [2015] QSC 060
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – where the plaintiff claimed payment of money lent to the defendants under a bill of sale whereby the first and second defendants assigned two printers to the plaintiff by way of security – where the defendants claimed that they were induced to enter the agreement by misrepresentations made by the operator of a franchise of the plaintiff’s parent company, the Bank of Queensland – where the defendants claimed relief under s 87 of the Trade Practices Act 1974 – where the alleged misrepresentations were that the defendants would not have to make any payment under the agreement unless and until there was a further agreement to extend credit to them by the bank and that the subject agreement was represented as an essential step towards obtaining a debtor finance facility – where the defendants claimed they should not have to repay the money they borrowed from the plaintiff. TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the plaintiff claimed payment of money lent to the defendants under a bill of sale – where the defendants claimed that they were induced to enter the agreement by misrepresentations made by the operator of a franchise of the plaintiff’s parent company – where the defendants claimed relief under s 87 of the Trade Practices Act 1974 – where the alleged misrepresentations were that the defendants would not have to make any payment under the agreement unless and until there was a further agreement to extend credit to them by the bank and that the subject agreement was represented as an essential step towards obtaining a debtor finance facility.  More...

Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited [2015] FCA 227
CONSUMER LAW – television commercials (TVCs) advertising 3D TVs – whether TVCs misleading or deceptive or likely to mislead or deceive – whether false or misleading representations conveyed – where TVCs parody comparative tests in comparing new 3D technology with conventional 3D technology – use of humour and exaggeration – whether scenes depicted in TVCs likely to be taken literally – whether consumers likely to be led into error – whether representations made with respect to any “future matter”. CONSUMER LAW – point of sale advertising representing 3D TV is “Full HD” and “1080P” – meaning of “Full HD” and “1080P” when used in relation to 3D TVs – whether “Full HD” or “1080P” convey representations as to “viewable image” when TV operating in 3D mode and viewed through 3D glasses – whether point of sale material likely to convey representation that viewable image in 3D mode is equivalent to resolution of 1920 x 1080p – significance of absence of recognised standard against which to assess such claims – whether such representations false or misleading in case of respondent’s 3D TVs having a display resolution of 1920 x 1080p. TORTS – tort of injurious falsehood – elements of tort – whether false representation conveyed – whether applicant established that it suffered actual loss as a result of broadcast of TVC alleged to convey false representation.  More...

Woollahra Municipal Council v Secure Parking Pty Ltd [2015] NSWSC 257
TRADE AND COMMERCE - misleading or deceptive conduct - nature of representation regarding intention to comply with terms of tender - whether subjective intention of tenderer rendered its offer non-conforming TRADE AND COMMERCE - misleading or deceptive conduct - whether silence amounted to misleading or deceptive conduct - where information otherwise publicly available. Judgment in favour of the plaintiff for $6,940,811.41. First Cross-Claim Cross-Summons dismissed.  More...

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T: +61 3 9321 9752

E: howard.rapke@holdingredlich.com

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E: ian.robertson@holdingredlich.com 

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E: paul.venus@holdingredlich.com

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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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