In the media
White Lady, Simplicity Funerals owner accused of
price-gouging
Funeral giant InvoCare has been accused of charging fees
for no service and gouging hundreds of dollars from bereaved
Australian families (22 November 2019).
More...
Banking royal commission leads to first conviction
— Dover Financial boss Terry McMaster
The Australian Securities and Investments Commission
(ASIC) has won its first case arising out of the
banking and financial services royal commission. Failed firm Dover
Financial Planning, and its sole director Terry McMaster, were
convicted in the Federal Court of false and misleading conduct (22
November 2019).
More...
Improving Australia's productivity and consumer
welfare
The ACCC says there needs to be greater recognition of the
economic costs of allowing anti-competitive mergers. Markets only
work when participants are well informed. If consumers are misled
or deceived they will likely make inappropriate decisions and be
worse off as a result (including lack of appropriate regulation to
curb monopoly pricing and a lack of price transparency)( 21
November 2019).
More...
Mesh-injured women win class action case
The landmark judgement, in which Justice Anna Katzmann
found that the manufacturers and suppliers of the mesh had engaged
in misleading conduct and negligence. 'At all relevant times
all the Ethicon devices had a defect, all such times all the
devices were also unfit for purpose for which they were
required,' Justice Katzmann said (21 November 2019).
More...
Former NAB branch manager sentenced for making false and
misleading statements to NAB
Former Western Sydney NAB branch manager, Mathew Alwan,
has been sentenced to 12 months imprisonment to be served by way of
Intensive Corrections Order (ICO) for making false
and misleading statements to NAB in relation to 24 home loan
applications (19 November 2019).
More...
Telstra to buy back debt of remote customers 'ripped
off' by unaffordable plans
Telstra has pledged to buy back thousands of dollars in
debt, improve credit checks, and discipline staff in an effort to
rebuild trust with vulnerable customers who feel ripped
off (19 November 2019).
More...
Australia: Practical Guidance from the Myer case for
Directors and Executives
Shareholders in listed companies may be entitled to
recover damages for breaches of continuous disclosure obligations,
and for misleading and deceptive conduct, upon the basis of
"indirect market-based" causation, thereby avoiding the
need to establish direct, personal reliance by the affected
shareholder upon either the absence of appropriate disclosure, or
that misleading and deceptive conduct (18 November 2019).
More...
Politicians reject push to make Health Star Ratings
mandatory amid customer confusion
Health Star Ratings will only remain on some eligible
products, after state and federal ministers from Australia and New
Zealand agreed to keep the system voluntary. Consumer group Choice
had been pushing for the system to be on all processed and packaged
foods, accusing food manufacturers of "gaming" the scheme
by picking and choosing which products to put stars on (15 November
2019).
More...
Not so noble trader ordered to pay $147,925 for
misleading consumers
A Burleigh Waters man has been ordered to pay $147,925 by
the Southport Magistrates Court (15 November 2019) after being
investigated by the Office of Fair Trading for misleading consumers
with a fictitious home deposit scheme (15 November 2019).
More...
Concerns about Assa Abloy fire doors deal
The ACCC has preliminary concerns that Assa Abloy's
proposed acquisition of E Plus Building Products Pty Ltd would
significantly reduce competition in the market for fire door cores.
The ACCC's preliminary view is that any new supplier would be
unlikely to enter the market in time, and at a sufficient scale, to
prevent price increases by a combined Assa Abloy-E Plus entity (14
November 2019).
More...
Former Cancer Council Queensland employee accused of
faking terminal diagnosis
A former Cancer Council Queensland employee has been
accused of faking her terminal illness.
In a statement released by the organisation, it is alleged the
woman "was engaging in misleading and deceptive conduct,
making false representations that she had a terminal cancer
diagnosis". (13 November 2019).
More...
Why Australia's first securities class action
judgment (sort of) cleared Myer
Myer is in the clear, sort of, after Australia's first
judicial ruling on a securities class action. It centred around
allegations that Myer misled the market about its projected
earnings. The court found Myer had been misleading, but that
because shareholders didn't believe it, it didn't harm
them. The ruling established important principles that will guide
future judgments (13 November 2019).
More...
Cases
Gill v Ethicon Sarl (No 5) [2019]
FCA 1905
Last Updated: 22 November 2019 Summary statement
CONSUMER LAW — representative action — nine
urogynaecological medical devices made from polypropylene intended
for permanent implantation in the female pelvis — where
manufactured by foreign corporations and supplied by local
corporation in the same corporate group — where neither
foreign corporation had a place of business in Australia but
impugned conduct took place in Australia, whether foreign
corporations can be found liable for contraventions of the Trade
Practices Act 1974 (Cth) and the Australian Consumer Law —
whether conduct of foreign corporations was "in trade or
commerce" — whether foreign corporations were carrying
on business in Australia
CONSUMER LAW — defective goods — whether at the time
medical devices were supplied by the manufacturer they had a
"defect" within the meaning of s 75AC of the Trade
Practices Act 1974 (Cth) or a "safety defect" within the
meaning of s 9 of the Australian Consumer Law in that "their
safety [was] not such as persons generally are entitled to
expect" — relevant circumstances — meaning of
"the time they were supplied by the manufacturer" —
"learned intermediary" doctrine — significance of
supply of devices through "learned intermediaries" (here,
surgeons or physicians) — where respondents failed to warn
doctors or patients of certain risks or potential complications of
which they were aware — extent of obligation to warn —
where some warnings were misleading — whether manufacturers
excused from liability with respect to risks or potential
complications that should be known to medical practitioners or
which they are able to discover for themselves — significance
of CE marking — relevance of state of scientific knowledge at
time of supply — whether state of scientific or technical
knowledge at time of supply not such as to enable defects to be
discovered — whether devices unfit for the purpose for which
they were supplied or of unmerchantable quality — whether
each applicant suffered injuries because of defect in device she
received or by reason that device not reasonably fit for the
purpose for which it was supplied — proper approach to
determination of causation in defective goods claim — causal
connection required by s 75AD(c)
CONSUMER LAW — misleading or deceptive conduct —
medical devices — whether product information published by
one or other respondent misleading or deceptive or likely to
mislead or deceive consumers of medical devices about the safety
and/or efficacy of the devices — whether loss or damage by
conduct
NEGLIGENCE — product liability — medical devices
— duty of care — content of duty owed by foreign
manufacturers and local supplier to end users of medical devices
— where known risk of significant injury, whether respondents
breached their duties of care by failing to adequately evaluate the
safety of the devices before and/or after they were released to
market — extent of obligation to warn where products supplied
through "learned intermediaries" — whether product
information insufficient to inform consumers of potential
risks
EVIDENCE — where Civil Liability Act 2002 (WA) renders
inadmissible evidence of injured person as to what she would have
done if tortfeasor had not been at fault, whether evidence of this
nature nonetheless admissible in a court exercising federal
jurisdiction — whether s 5C(3) of the Civil Liability Act
picked up by Judiciary Act 1903 (Cth)
PRACTICE AND PROCEDURE — representative proceeding —
consumer class action — where respondents' conduct with
respect to multiple products is impugned — whether applicants
were capable of representing group members who had been supplied
with different products
LIMITATION OF ACTIONS — Trade Practices Act 1974 (Cth), ss
74J, 75AO — burden of proof — times that causes of
action arose — whether certain actions statute-barred —
effect of long-stop provisions in ss 74J(3) and 75AO(2) —
whether Limitation Act 1935 (WA) or Limitation Act 2005 (WA)
applied to claim by applicant implanted with device before
commencement of 2005 Act — whether common law actions
statute-barred — whether leave should be granted to extend
the periods of limitation
PRACTICE AND PROCEDURE — whether respondent required to plead
that action statute-barred under ss 74J(3) and 75AO(2) —
whether provisions were in fact pleaded when only raised against
group members and not against applicant
DAMAGES — calculations of life expectancy — discount
for vicissitudes — whether discounts for the ordinary
vicissitudes of life should be made to damages for future
out-of-pocket expenses or care/services — whether s 5D of the
Civil Liability Act 2002 (WA) and s 52 of Wrongs Act 1958 (Vic)
disturb principles in Watts v Rake [1960] HCA 58; (1960) 108 CLR
158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
— whether under Trade Practices Act 1974 (Cth) and Wrongs Act
1958 (Vic) a 5% multiplier or discount rate applies to future
out-of-pocket expenses and care/services or only to future economic
loss — whether future services should be compensated at
commercial rates
OTHER RELIEF — whether injunctive relief appropriate or of
any utility — whether declaratory relief should be
granted
Adelaide Brighton Cement Limited, in the matter of Concrete
Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of
Company Arrangement) (No 4) [2019] FCA
1846
CONTRACTS — where the plaintiff seeks to recover
monies said to be owed to it for cement supplied over a period of
approximately nine years — whether the plaintiff agreed to
provide the first defendant with a discount or rebate in relation
to the supply of cement
ESTOPPEL — whether the plaintiff is estopped from denying
that it agreed to provide the first defendant with a discount or
rebate in relation to the supply of cement — whether the
first defendant had a genuine belief that it was entitled to a
discount or rebate
CONSUMER LAW — whether the first defendant engaged in
misleading or deceptive conduct in contravention of s 18 of the
Australian Consumer Law (Sch 2 of the Competition and Consumer Act
2010 (Cth)) — whether the fourth to sixth defendants were
involved in conduct which contravened s 18 — whether the
first defendant's silence was misleading or deceptive —
whether the plaintiff is taken to have been aware of the true level
of indebtedness of the first defendant by reason of the knowledge
or conduct of one of the plaintiff's employees
EQUITY — whether the first defendant held cement which was
received but not paid for, and income generated using that cement,
on trust for the plaintiff — whether the first defendant
committed a breach of trust or fiduciary duty for which it must
account to the plaintiff — whether the fourth to sixth
defendants procured or knowingly assisted or benefitted from that
breach
CORPORATIONS — whether the first defendant failed to maintain
adequate books and records in contravention of s 286 of the
Corporations Act 2001 (Cth) — whether a severe absence of
records is required to demonstrate a contravention of s 286 or
whether the failure to record a major liability is sufficient
CORPORATIONS — where the first defendant is subject to a deed
of company arrangement — application under s 445D the
Corporations Act to set aside the DOCA — whether the
investigations conducted by the second and third defendants were
inadequate — whether the second and third defendants ought to
have sought an extension of the convening period — whether
the second and third defendant's second report to creditors
contained false or misleading statements and/or material omissions
within the meaning of s 445D(1)(a), (b) and (c) of the Corporations
Act — whether the Court should exercise its discretion to
terminate the DOCA — whether it is in the public interest
that a liquidator be appointed to the first defendant
CORPORATIONS — application under s 447A of the Corporations
Act to terminate or set aside the DOCA — where the plaintiff
alleges that the DOCA is an abuse of Pt 5.3A of the Corporations
Act
CORPORATIONS — application under ss 75-42 and 90-15 of Sch 2
of the Corporations Act for an order that the resolution that the
first defendant execute the proposed DOCA, passed on the casting
vote of the second defendant, be set aside — application
under ss 75-43 and 90-15 of Sch 2 of the Corporations Act for an
order that the resolution that the first defendant be placed into
liquidation, defeated on the casting vote of the second defendant,
be taken to be passed — whether the second defendant's
exercise of the casting vote was unreasonable — whether the
second defendant failed to have regard to a number of relevant
considerations
Luben Petkovski v Kai Yin Huang (No. 3)
[2019] NSWSC 1566
UNCONSCIONABLE CONDUCT – causation of loss
–findings in principal judgment that the defendant/first
cross-claimant deprived of the opportunity to purchase three of six
properties by the first cross-defendant's misleading, deceptive
and unconscionable conduct – wrongdoer deters an associate of
the defendant/cross-claimants from sharing in the purchase of two
of the six properties – on what basis should damages be
assessed against the cross-defendants: on the basis that the
cross-claimants would have purchased a single additional property
or an additional three properties.
TRUSTS AND TRUSTEES – reimbursement and indemnity under Trust
Deeds for trustees' trust-related expenditure – principal
judgment makes a finding that the defendants/cross-claimants are
trustees for the cross-defendants in the acquisition and
development of certain properties –
defendants/cross-claimants seek to set aside the Trust Deeds
– defendants/cross claimants claim reimbursement and
indemnity under the Trust Deeds for trustees' trust-related
expenditure – whether their expenditure is recoverable.
Smith v Opalite Industries Pty Ltd t/as Opalite
Caravans [2019] NSWCATAP
271
CONSUMER LAW – misrepresentations in connection with
the supply of a caravan and information recorded on its compliance
plate – determination of factual matters adverse to the
appellants – refusal of leave to appeal.
Southern Waste Resourceco Pty Ltd v Adelaide Hills
Region Waste Management Authority (No.
3)[2019] SASC 192
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING
OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - MISLEADING OR
DECEPTIVE CONDUCT GENERALLY - GENERALLY
Held: any costs award made against SWR in view of my dismissal of
its claim should not be made on an indemnity basis.
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.
