In the media
Australian Unity to compensate some members over dental
benefits
Following an ACCC investigation, Australian Unity has
agreed to pay compensation to members who held couple and family
policies in 2015 that were likely to have been misled about the
dental benefits they could claim from their policy. It is expected
that Australian Unity will pay at least $620,000 in compensation to
affected consumers (03 November 2017).
More...
Second Competition Law Reform Act receives assent
The second Act that forms a part of the major reform to
competition law that was begun by the Harper Review has received
assent. The Competition and Consumer Amendment (Competition
Policy Review) Act 2017 (Cth) (the Competition Policy
Review Act) received assent on 27 October 2017 as Act 114
of 2017, following the enactment on 23 August 2017 of the
Competition and Consumer Amendment (Misuse of Market Power) Act
2017 (Cth) (the Misuse of Market Power Act)
as Act 87 of 2017 (01 November 2017). More...
Recent new entrants will increase competition at
container ports
The ACCC's annual Container Stevedoring Monitoring Report has
stated that while stevedoring operating profits per TEU have risen
by over 25 per cent in 2016-17, competition levels are set to
increase as there are now three stevedores competing at the
nation's three largest container ports. The ACCC's report
is available
here (01 November 2017).
More...
ACCC welcomes 5G but flags competition issues
The ACCC is rethinking the way it approaches spectrum
competition issues ahead of the upcoming 5G auction. ACCC Chairman
Rod Sims said Companies put a value on preventing their competitors
or potential competitors getting access to spectrum. This means
that a large part of the value of spectrum is actually in reducing
competition (01 November 2017).
More...
ACCC issues extensive report on communications
market
The ACCC has published its draft report detailing its
market study of the communications sector, which includes 29
recommendations spanning a wide range of competition and consumer
issues in communications markets. The market study found that there
is strong price competition between the major service providers
despite considerable concentration in both fixed and mobile retail
markets (30 October 2017).
More...
Crunch Tel warned
Telecommunications service provider, Crunch Tel Pty Ltd, has been
formally warned for transferring customers to its service without
their consent. The Telecommunications Consumer Protections
Code contains the rules that providers must follow when
transferring customers—including when those transfers happen
as a result of one service provider selling its business to another
(27 October 2017).
More...
Queensland passes laws to stop retirement villages
exploiting elderly residents
New legislation passed in State Parliament will stop
retirement village operators from gouging elderly Queenslanders and
will enforce simplified contracts, Housing Minister Mick de Brenni
says (26 October 2017).
More...
Australian Olympic Committee, Inc v Telstra
Corporation Limited [2017] FCAFC 165
In their judgment, Australian Olympic Committee, Inc v Telstra
Corporation Ltd [2017] FCAFC 165, Justices Greenwood, Nicholas
and Burley held that the primary judge did not make any error of
law in finding that Telstra was not misleading consumers into
believing that it was the official sponsor of the Australian
Olympic Committee (AOC,) in its presentation of a
number of ads regarding the Rio Olympic Games (26 October 2017). More...
MSY Technology ordered to pay penalties of $750,000 for
consumer guarantee misrepresentations
MSY Technology operates 28 retail stores across Australia
and online, selling computers, computer parts, accessories and
software. MSY Technology admitted that it made false or misleading
representations on the MSY website, and in oral and email
communications to consumers about their rights (25 October 2017).
More...
Guidance for Harper reforms
The ACCC has issued guidelines for consultation on the
new misuse of market power, concerted practices and authorisation
provisions. These reforms recently passed Parliament and stem from
recommendations of the Competition Policy Review (25 October 2017).
More...
Issues paper for northern Australia insurance
inquiry
The ACCC has released an issues paper for its inquiry
into the supply of residential building, contents, and strata
insurance in northern Australia. The ACCC is seeking feedback from
interested stakeholders on a range of issues, including: Insurance
pricing, the key cost components of insurance, and insurer
profitability and the competitiveness of markets for insurance in
northern Australia. Submissions are due on 21 December 2017 (24
October 2017).
More...
In practice and courts, published reports
ACCC annual report 2016-2017
The ACCC's 2016-2017 annual report was tabled in
Parliament (23 October 2017).
In relation to competition law and policy, the report highlights:
"the first criminal cartel case, describing it as a
'watershed moment in Australia's competition law
history'; the Ramsey Health care proceedings alleging misuse of
market power and exclusive dealing; High Court success in Flight
Centre and the Air NZ/Garuda Indonesia cases and market studies
into 'sectors including new car retailing, dairy, regional
petrol prices, and gas and electricity affordability'.
More...
Evolution or revolution? Why competition matters for 5G
(Speech at RadComms 2017, 1 November 2017)
ACCC Chairman, Rod Sims, has welcomed the upcoming
auction of 5G, but has also flagged some competition concerns in a
speech delivered at the RadComms conference.
More...
Communications sector market study: draft report
The ACCC published
draft report detailing its market study of the communications
sector, which includes 29 recommendations spanning a wide range
of competition and consumer issues in communications markets. The
ACCC is seeking comments until 8 December 2017. A final report is
expected early 2018.
More...
ACCC interim guidance on Harper reforms
The ACCC has issued the following three 'interim'
guidelines addressing some of the key changes that will be brought
about by the Harper Reforms:
Interim guidelines on concerted practices
Interim guidelines on section 46 reforms
Guidelines and interim forms for merger and non-merger
authorisations
The ACCC is consulting on these guidelines, with submissions due by
24 November 2017 (25 October 2017).
ACCC Interim guidelines on concerted practices
consultation
In the coming weeks the Australian Government will
implement reforms to the Competition and Consumer Act 2010
(CCA) prohibiting parties from engaging in a
concerted practice that has the purpose, effect, or likely effect
of substantially lessening competition. The ACCC have prepared
interim guidelines to help businesses understand and comply with
the law. Submissions are due by 24 November 2017.
More...
ACCC Interim guidelines on section 46 reforms
consultation
Important reforms to section 46 of the Competition
and Consumer Act 2010 (CCA) will come into
effect in the coming weeks. Under these reforms a firm with a
substantial degree of market power is prohibited from engaging in
conduct that has the purpose, effect or likely effect of
substantially lessening competition in a market. Submissions are
due by 24 November 2017.
More...
ACCC SOI on proposed acquisition of OfficeMax
The ACCC has issued a Statement of Issues in relation to
Platinum Equity's proposed acquisition of OfficeMax Australia.
It has indicated its 'primary concern is that the loss of
competition between Staples and OfficeMax could result in higher
prices and lower levels of service'. A final decision is
expected on 16 November 2017.
(ACCC media release) More...
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 an online submission
Acts receive Royal Assent
The main Harper Bill - the
Competition and Consumer (Competition Policy Reform) Bill
2017 received Royal Assent last Friday, 27 October 2017.
The main provisions come into operation the day after six months
from receiving Royal Assent, unless an earlier date is proclaimed.
Subject to the fixing of an earlier date it will come into
operation on 28 April 2018.
On 30 October the Competition and Consumer Amendment (Abolition of Limited Merits) Act 2017 also received Royal Assent.
Cases
Hancock Prospecting Pty Ltd v Rinehart [2017]
FCAFC 170
ARBITRATION – appeal from interlocutory decision on
an application under s 8(1) of the Commercial Arbitration Act
2010 (NSW) seeking an order that the parties to the proceeding
be referred to arbitration in respect of the subject matter of
various deeds – whether the primary judge erred in ordering a
proviso trial under s 8(1).
ARBITRATION – whether the arbitration contemplated by the
arbitration agreements is commercial for the purposes of the
Commercial Arbitration Act 2010 (NSW) – meaning of
the phrase "commercial arbitration" – whether
parties need to demonstrate the existence of a pre-existing
commercial relationship between the parties to the dispute –
whether a family or domestic dispute and the arbitration to resolve
it can also be characterised as a commercial dispute.
ARBITRATION – proper approach to determination of an
application under s 8(1) of the Commercial Arbitration Act
2010 (NSW) – proper approach to construction of an
arbitration agreement – whether the disputes in question are
the subject of an arbitration agreement – where arbitration
agreements refer to "any dispute under this deed" –
whether that phrase should be read as limited to those disputes
governed or controlled by the deed – breadth of the potential
meaning of entire phrase "any dispute under this
deed".
ARBITRATION – whether parties that are not parties to the
deeds and arbitration agreements can be referred to arbitration
because they claim "through or under" entities who are
parties – definition of party within s 2(1) of the
Commercial Arbitration Act 2010 (NSW) – whether the
claims against third parties are part of the same
"matter" within s 8(1) of the Commercial Arbitration
Act 2010 (NSW) – circumstances in which claims against
third party companies can be stayed under the Court's general
power to stay proceedings.
ARBITRATION – principles of separability and competence
– whether any of the arbitration agreements can be said to be
null and void, inoperative or incapable of being performed –
whether the requisite separate attack on the arbitration agreement
present – character of the necessary attack on the
arbitration agreement for the proviso of s 8(1) –
construction of phrase "null and void" –
circumstances in which the Court should hear the separate attack or
permit the arbitral tribunal to hear the attack.
CONSTITUTIONAL LAW – Constitutional validity of s 8(1) of
the Commercial Arbitration Act 2010 (NSW) – whether
s 8(1) is picked up by s 79 of the Judiciary Act 1903
(Cth) – whether allowing the arbitrator to decide the proviso
challenge under s 8(1) impermissibly confers judicial power upon
the arbitrator. Australian Consumer Law (Sch 2 of the
Competition and Consumer Act 2010 (Cth)), ss 18, 20.
The causes of action pleaded are false and misleading conduct,
fraudulent concealment, misleading and deceptive conduct in
contravention of s 52 of the Trade Practices Act 1974
(Cth) (the TP Act) and Sch 2 to the
Competition and Consumer Act 2010 (Cth) (the
Australian Consumer Law), material non-disclosure,
unconscionable conduct, undue influence, duress, breach of trust
and fraud on a power. Both Ms Rinehart and Mr Hancock plead that
they are entitled to rescind, and, by their pleading, do rescind,
the various deeds to which they are a party. They also seek
declarations that the deeds, and the arbitration agreements, are
void.
Australian Securities and Investments Commission, in the matter
of Golden Financial Group Pty Ltd (formerly NSG Services Pty Ltd) v
Golden Financial Group Pty Ltd (No 2) [2017]
FCA 1267
CORPORATIONS LAW – where defendant was found to
have contravened ss 961K(2) and 961L of the Corporations Act
2001 (Cth) – where parties agreed in relation to
proposed pecuniary penalties and costs orders – whether
proposed relief is appropriate in all the circumstances.
Competition and Consumer Act 2010 (Cth), s 76, Sch 2,
Australian Consumer Law, s 224; Corporations Act 2001
(Cth), ss 961B, 961G, 961H, 961J, 961K, 961L, 1317G.
Australian Competition and Consumer Commission v MSY Technology
Pty Ltd [2017]
FCA 1251
CONSUMER LAW – misleading or deceptive conduct
– consumer guarantee provisions – where representations
made about the existence, exclusion or effect of a guarantee, right
or remedy – where contraventions admitted – where
agreed orders and pecuniary penalty – whether proposed relief
appropriate – application allowed. Australian Consumer
Law ss 18, 29(1)(m), 29(1)(n), 64, 224, 232, 246;
Competition and Consumer Act 2010 (Cth) Sch 2.
Australian Olympic Committee, Inc v Telstra Corporation
Limited [2017]
FCAFC 165
CONSUMER LAW – appeal – misleading and
deceptive conduct – where print, electronic and television
advertisements and promotional material used to promote a mobile
phone application prior to the 2016 Rio Olympic Games – where
advertisements used to promote partnership with Olympic sponsor
– where advertiser is not an Olympic sponsor – whether
advertisements and promotional material would mislead or deceive
consumers into believing a sponsorship or sponsorship-like
relationship existed– appeal dismissed.
STATUTES – Olympic Insignia Protection Act 1987
(Cth), s 36 – appeal – whether conduct breached s 36
– use of protected Olympic properties in advertisements and
promotional material – whether use of Olympic properties
would indicate the existence of sponsorship or sponsorship-like
relationship to a "reasonable" person – appeal
dismissed.
TJQ Pty Ltd v Lunch Hour Australia Pty Ltd (Civil
Claims) [2017]
VCAT 1705
Sale of business – misleading and deceptive conduct
– section 18 Australian Consumer Law – conduct of agent
– section 196 Australian Consumer Law and Fair Trading
Act 2012 (Vic) – damages. The Respondents shall pay to
the Applicant the sum of $7169.50. All parties shall pay their own
costs.
Australian Competition and Consumer Commission v JJ Richards
& Sons Pty Ltd [2017]
FCA 1224
CONSUMER LAW – unfair contract terms – where
respondent provided waste management services – where
respondent had entered into 26,000 contracts, including small
business contracts, since applicable provisions commenced –
where ACCC contended that certain terms of the contracts were
"unfair" within the meaning of s 24 of the Australian
Consumer Law – where ACCC and respondent reached agreement in
relation to proposed declarations and injunctions – proposed
declarations and orders made. Competition and Consumer Act
2010 (Cth), Sch 2, Australian Consumer Law, ss 23, 24, 25, 27,
232, 233, 250.
Commissioner for Consumer Protection and
Murray [2017]
WASAT 137
Real estate agent - Disciplinary action - Code of Conduct -
Misleading conduct - Notification of change of address - Real
Estate and Business Agents Act 1978 (WA), s 44(3), s 51(2), s
102(1)(b).
Westpac v Anderson [2017]
VCC 1519
CONTRACT – plaintiff seeking to recover judgment
debt - whether plaintiff entitled to debit enforcement expenses
from defendant's loan account without telling her first –
was the defendant entitled to cease paying her monthly repayments
because of the plaintiff's conduct – did the plaintiff
breach any implied term to act reasonably and in good faith.
UNCONSCIONABILITY – whether the plaintiff acted
unconscionably under the Australian Securities and Investments
Commission Act 2001 (Cth).
PRACTICE AND PROCEDURE – did the plaintiff engage in an
abuse of process by later reversing the disputed payment and making
a second summary judgment application.
LOSS AND DAMAGE – losses claimed by the defendant, including
loss of income, not caused by any breach of contract or
unconscionable conduct on the part of the plaintiff.
Australian Securities and Investment Commission Act 2001
(Cth); Civil Procedure Act 2010 (Vic); Competition and
Consumer Act 2010 (Cth).
Legislation
Competition and Consumer Amendment (Competition Policy
Review) Bill 2017
Finally passed both Houses 18 October 2017 Assent Act no: 114
Year: 2017 27 October 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.
Competition and Consumer Amendment (Competition Policy Review)
Regulations 2017
03/11/2017 - This instrument makes consequential amendments to the
Competition and Consumer Regulations 2010 following
amendments made to the Competition and Consumer Act 2010
by a number of amending Acts (primarily the Competition and
Consumer Amendment (Misuse of Market Power) Act 2017 and the
Competition and Consumer Amendment (Competition Policy Review)
Act 2017).
Competition and Consumer Amendment (Abolition of
Limited Merits Review) Bill 2017
Finally passed both Houses 16 October 2017 Assent Act no:
116 Year: 2017 30 October 2017.
Amends the Competition and Consumer Act 2010 to: prevent
the Australian Competition Tribunal from reviewing decisions made
under the National Electricity Law, the National Gas Law and the
National Energy Retail Law, other than decisions relating to the
disclosure of confidential or protected information; and provide
that decisions made by the Australian Energy Regulator under those
laws are not subject to merits review by any other state or
territory body.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
