In the media
Consumer Data Right Compliance and Enforcement Policy
released
The ACCC and the Office of the Australian Information
Commissioner (OAIC) jointly released the
Compliance and Enforcement Policy for the Consumer Data Right. The
Policy outlines the approach that the ACCC and the OAIC have
adopted to encourage compliance with, and address breaches of, the
Consumer Data Right regulatory framework (08 May 2020).
More...
Federal Court dismisses ACCC appeal on PN Aurizon
case
The ACCC has dismissed the ACCC's appeal against a
2019 Federal Court decision which found that Pacific National's
acquisition of Acacia Ridge Terminal in Brisbane would not
substantially lessen competition as a result of undertakings given
by PN. As a result of the appeal the acquisition can proceed
without that undertaking. The ACCC is considering the judgment (06
May 2020).
More...
Director banned for seven years by ASIC
ASIC found that he had failed to act in the best interest
of clients, was not competent to provide financial product advice,
was likely to contravene financial services law and was involved in
contraventions by Olive where it engaged in misleading or deceptive
conduct and made false or misleading statements (05 May 2020).
More...
TWE served another class action
Treasury Wine Estates (TWE) has been
served with another class action alleging the business engaged in
misleading and deceptive conduct. TWE said in a statement to the
ASX that it "strongly denies any and all allegations of
wrongdoing and intends to vigorously defend the further
proceeding." (04 May 2020).
More...
Flight Centre stops charging cancellation fees for trips
affected by coronavirus
The travel agent chain backs down from charging hundreds
of dollars in cancellation fees for trips cancelled due to COVID-19
restrictions, following pressure from customers and the Australian
Competition and Consumer Commission (02 May 2020).
More...
Pub owners to pay $380,000 in damages over secret beer
tap deals
South Australia's Supreme Court has ordered the
directors of a prominent Adelaide hotels syndicate concealed
lucrative deals with major breweries from their then-business
partners. Although the court found the publicans had engaged in
misleading and deceptive conduct and breached consumer law, it
rejected the plaintiffs' further claim for breaches of the
shareholder agreement in relation to the hotel (01 May 2020).
More...
ACCC's bank review creates interest
The Australian Competition and Consumer Commission
(ACCC) has published an interim report from its
Home Loan Price Inquiry showing that the big four banks placed
recovering profits above passing on lower interest rates to
mortgage customers (30 April 2020).
More...
Sydney's ELB awarded $1.35 million in damages over
acquisition of AV reseller
Sydney-based unified communications and interactive
display reseller ELB has been awarded $1.35 million in damages from
the former directors of one of its subsidiaries. The New South
Wales Supreme Court ruled the former directors of Broadreach
Consulting had engaged in misleading and deceptive conduct when the
company was sold to ELB in 2015. (28 April 2020).
More...
STA Travel to pay $14 million in penalties for
misleading advertisements
The Federal Court has ordered that STA Travel Pty Ltd pay
$14 million in penalties for making false or misleading claims when
advertising its MultiFLEX Pass product. STA Travel admitted that,
between March 2014 and August 2019, it made misleading
representations in MultiFLEX Pass advertising that consumers who
bought the airfare add-on could change their flights without paying
fees or charges (24 April 2020).
More...
Competition watchdog warns Qantas against
anti-competitive behaviour
The ACCC warns Qantas it will take swift action against
anti-competitive behaviour such as attempts to swamp airline
routes, artificially push down prices or lock in exclusive deals
with airports and suppliers (24 April 2020).
More...
Petrol stations accused of gouging as some Queenslanders
pay 75 per cent more
While the price of petrol falls to the lowest point in a
generation in Brisbane, service stations are charging 30 per cent
more in north Queensland and 75 per cent more in Mt Isa, with a
federal MP raising accusations of collusion (24 April 2020).
More...
Practice and regulation
ACCC: COVID-19 (coronavirus) information for small
business
On this page you will find the latest information on the
rights and obligations of small business in response to events
caused by the COVID-19 pandemic. Businesses should continue to be
mindful of their obligations under the Australian Consumer Law,
which include:
- to not mislead customers, including about what the customer is entitled to under their terms and conditions
- to not act unconscionably when dealing with their customers
- to not seek to rely on unfair terms in standard form contracts with customers (08 May 2020). More...
ACCC consultation update: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26
GHz spectrum licences, the potential uses for the spectrum, the
markets where this spectrum will be used, and any competition
issues associated with how this spectrum is allocated. The Minister
has asked for the ACCC's advice by mid-May 2020. The
consultation paper is available at
Spectrum Competition Limits.
Cases
Moore v Scenic Tours Pty Ltd [2020] HCA
17
Appeal allowed. Damages – Consumer guarantees
– Personal injury – Where appellant booked holiday
cruise tour supplied by respondent – Where holiday cruise
tour severely disrupted by adverse weather conditions – Where
respondent breached consumer guarantees in ss 60 and 61 of
Australian Consumer Law ("ACL") – Where appellant
claimed damages for disappointment and distress – Where s 275
of ACL provided that where failure to comply with consumer
guarantee that applies to supply of services and State law proper
law of contract, that law applies to limit or preclude liability
for failure and recovery of liability as it would for breach of
contract – Where New South Wales proper law of contract
– Where s 16(1) of Civil Liability Act 2002 (NSW)
("CLA") precluded damages for non-economic loss in
relation to personal injury cases unless non-economic loss at least
15% of most extreme case – Where threshold in s 16(1) not
reached – Whether s 275 of ACL picked up and applied s 16 of
CLA as surrogate federal law – Whether s 16 of CLA applied to
preclude damages for disappointment and distress not consequential
upon physical or psychiatric injury.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 60, 61, 267,
275; Civil Liability Act 2002 (NSW), ss 3, 11, 11A, 16
Australian Competition and Consumer Commission v Pacific
National Pty Limited [2020] FCAFC
77
COMPETITION – proposed acquisition of the Acacia
Ridge Terminal in Brisbane – alleged contravention of s 50 of
the Competition and Consumer Act 2010 (Cth) – market
definition – economic tests for defining a price
discrimination market – whether conduct likely to have the
effect of substantially lessening competition in a market –
meaning of "likely" – standard of proof to be
applied to predictions about future facts and circumstances –
vertical merger – ability and incentive to engage in price
discrimination – whether raising barriers to entry sufficient
to establish a substantial lessening of competition –
likelihood of new entry – new entry a mere possibility
UNDERTAKING – whether undertaking to the Court proffered by
acquirer should be accepted – whether Court has power to
accept the undertaking – whether power arises under the
Federal Court of Australia Act 1976 (Cth) or only under s 80 of the
Competition and Consumer Act 2010 (Cth) – whether acceptance
of the undertaking would infringe Chapter III of the Constitution
by attempting to confer a non-judicial power on the Federal Court
-– where undertaking is outside of the relief sought by the
Australian Competition and Consumer Commission – whether
undertaking is sufficiently certain as to be enforceable –
whether primary judge erred in fact or principle in accepting
undertaking
Competition and Consumer Act 2010 (Cth) ss 2, 4E, 4G, 45AD, 45D,
45DA, 45DB, 46, 47, 50, 50A, 52, 80, 87B, 90, 163A; Competition and
Consumer Amendment (Misuse of Market Power) Act 2017 (Cth)
Trade Practices Amendment Act 1977 (Cth; Trade Practices Amendment
(Cartel Conduct and Other Measures) Act 2009 (Cth)
Braham v ACN 101 482 580 Pty Ltd
[2020] VSCA 108
CONSUMER LAW – Misleading or deceptive conduct
– Partnership agreement prepared by lawyer for promoter of
failed investment scheme – Whether preparation of partnership
agreement amounted to representation by lawyer to non–client
investor as to compliance with taxation ruling – Whether
non-disclosure of 'qualifying fact' – Miller
& Associates Insurance Broking Pty Ltd v BMW Australia Finance
Ltd [2010] HCA 31; (2010) 241 CLR 357, Butcher v Lachlan
Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592,
considered – Whether representation by lawyer to client
promoter – Alleged 'indirect' causation of loss to
investor – TPT Patrol Pty Ltd v Myer Holdings Ltd
(2019) 140 ACSR 38, 316-7 [1656]-[1660], considered – Whether
lawyer's retainer precludes finding of misleading or deceptive
conduct outside scope of retainer – Extent of retainer not
dispositive but relevant contextual feature – Watkins v De
Varda [2003] NSWCA 242, distinguished – No representation
– No failure to disclose.
Legislation
Commonwealth
Competition
and Consumer (Industry Code – Electricity Retail) (Model
Annual Usage and Total Annual Prices) Determination
2020
01/05/2020 - This instrument sets out the Australian
Energy Regulator (AER) determined per-customer amount of
electricity supplied in specified distribution regions to small
customer, the AER determined timing or pattern of the supply of
electricity in specified distribution regions to small customers
and the AER determined reasonable per-customer annual price for
supplying electricity in specified distribution regions to small
customers.
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.