In the media
Compass Claims to change advertising of its replacement
vehicles for accidents
CompassCorp Pty Ltd trading as Compass Claims
(Compass) will amend its advertising and sales
practices following an investigation by the ACCC. The ACCC
considered Compass was misrepresenting in brochures, its website
and in phone calls that consumers who engaged Compass would not be
liable for hire car charges or associated costs (01 December 2017).
More...
Section 46 no defence for uncompetitive
firms
Delivering a speech in Sydney, Mr Sims outlined how the recently
legislated changes to the Competition and Consumer Act
2010 (CCA), especially s46, help the ACCC
protect the competitive process by allowing firms, big and small,
to compete on their merits. Under s46, firms with a substantial
degree of market power are prohibited from engaging in conduct that
has the purpose, effect or likely effect of substantially lessening
competition (SLC) in a market (30 November 2017).
More...
Dairy inquiry highlights power imbalances in supply
chain
A mandatory code of conduct should be considered for the Australian
dairy industry to address problems caused by bargaining power
imbalances between processors and farmers, according to
recommendations made by the ACCC in its interim report from its
inquiry into the industry, published 30 November 2017.
More...
ACCC takes action against Ashley & Martin for
alleged unfair contract terms
The ACCC has instituted proceedings in the Federal Court against
Ashley & Martin Pty Ltd alleging that clauses in its standard
form contracts are unfair under the Australian Consumer Law and
therefore void. The clauses which the ACCC alleges were unfair
committed customers to paying the full contract price before the
customer had a proper opportunity to consider medical advice about
the treatment (29 November 2017).
More...
ACCC takes action against Jayco
The ACCC has instituted proceedings in the Federal Court against
Jayco Corporation Pty Ltd (Jayco), alleging it
breached the Australian Consumer Law (ACL) by its
conduct towards four customers who purchased defective Jayco
caravans. The ACCC also alleges Jayco made false or misleading
representations to the four affected customers about their rights
to obtain a refund or replacements for their defective caravan,
including that Jayco represented that it had no role or
responsibility to provide a remedy such as a refund or replacement
vehicle (29 November 2017).
More...
Fastway Couriers (Perth) pays penalty for alleged
Franchising Code breach
West Aust Couriers Pty Ltd, trading as Fastway Couriers (Perth),
has paid a $9,000 penalty after the ACCC issued an infringement
notice for alleged non-compliance with the Franchising Code of
Conduct (Franchising Code). Fastway Couriers
(Perth) has also provided the ACCC with a court enforceable
undertaking to address the ACCC's concerns that it had made
false or misleading representations regarding the future earnings
of courier franchisees by advertising an "income
guarantee" of $1,500 per week for 30 weeks to prospective
franchisees (29 November 2017).
More...
The sharing economy: know your rights, know the
rules
As apps such as Uber, Airbnb and Airtasker become more popular,
Victorians are being reminded about their rights under the
Australian Consumer Law when it comes to the sharing economy.
Businesses have a responsibility to their consumers to not engage
in misleading or deceptive conduct such as: writing a fake review,
asking or paying someone to write a fake review, writing a false
review about a competitor or hiding negative customer reviews (27
November 2017)
More...
Report on commission-based fundraising in the charity
sector
The ACCC released an independent research report on
commission-based fundraising in the charity sector,
Research into the commission-based charity fundraising industry in
Australia, as part of its 2017 compliance and enforcement focus
on consumer issues arising from commission-based sales. The report
found that some charities operated on a model in which third-party
marketing firms earn fees for each donor that signs up from
face-to-face or telemarketing approaches. The fee is commonly
calculated by a multiple (typically eight to 17 times) of the
monthly donation to which the donor commits (27 November 2017).
More...
October complaints data released in time for Christmas
shopping
NSW Fair Trading's Complaints Register October data was
released with ticket reseller Viagogo again topping the list for
the third month running. Viagogo was the subject of a public
warning in late August, after numerous complaints relating to
delayed delivery, event cancellations, heavily marked-up prices,
hidden fees, and failure to provide refunds (23 November 2017).
More...
Energy cartel laws waived for food processors desperate
to reduce costs
A group of energy intensive food processors gain exception to
cartel laws to tender for cheaper electricity and gas (23 November
2017).
More...
AAMI slugged with $43,200 fine over misleading home
building insurance ad
Suncorp Group's AAMI has paid $43,200 in penalties after the
corporate watchdog raised concerns about false or misleading
advertisements relating to its home insurance. The advertisements,
on both AAMI's website and the radio, were promoting the Home
Building Insurance 'Complete Replacement Cover' product,
and stated the company would repair or rebuild an insured property
regardless of the cost to the insurer (22 November 2017).
More...
Finder.com.au penalised for misleading
consumers
Hive Empire Pty Limited, trading as finder.com.au
(Finder), has paid a penalty of $10,800 following
the issue of an infringement notice by the ACCC for alleged false
or misleading claims about the number of health insurance policies
it compares (22 November 2017).
More...
Information the key to read meat
competition
ACCC Commissioner, Mick Keogh, spoke to the MLA Red Meat Industry
Forum in Alice Springs. He highlighted concerns about transparency
and future competitiveness of the cattle industry and referenced
the ACCC's Cattle and Beef Market Study which recommended
improving market information in order to improve competitiveness
(22 November 2017).
More...
In practice and courts, published reports
Dairy inquiry
The ACCC is conducting an inquiry into the competitiveness, trading
practices, and transparency of the Australian dairy industry. On 28
September 2017 the Treasurer extended the reporting period for the
inquiry. The ACCC released its interim report on 30 November 2017
and is seeking industry feedback. The ACCC must submit its report
following the inquiry to the Treasurer by 30 April 2018. (Interim
report) More...
More...
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
New real estate reforms to better protect
consumers
Minister for Better Regulation Matt Kean announced legislation to
strengthen standards in the state's $15 billion-a-year real
estate industry and better protect consumers in the property
market. It's the first major review of the Property, Stock
and Business Agents Act since it became law in 2002. Mr Kean
said the proposed amendments would bolster training standards as
well increasing transparency and accountability to put consumers
first (21 November 2017).
More...
Cases
Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd
[2017] FCAFC 190
CONTRACT – implied terms – implication of duty or
obligation of good faith and reasonableness – franchise
agreement – where franchisor had discretionary power to set
maximum prices for products – where parties accepted that
power subject to duty of good faith – scope of duty of good
faith and reasonableness – whether franchisor was obliged to
act reasonably in an objective sense.
NEGLIGENCE – franchise agreement – whether franchisor
owed duty of care to franchisees in exercising power to set maximum
prices for products – where franchisee alleged that
franchisor owed franchisees a duty to exercise power so that
franchisees could make, maintain or increase profits.
CONSUMER LAW – unconscionable conduct – franchise
agreement – where franchisee alleged that franchisor had
engaged in unconscionable conduct in setting maximum prices for
products.
Competition and Consumer Act 2010 (Cth), Sch 2,
Australian Consumer Law, ss 21, 22; Federal Court of Australia
Act 1976 (Cth), ss 33H, 33ZC.
Seiko Epson Corporation v Calidad Pty Ltd [2017] FCA
1403
PATENTS – remanufacture of printer ink cartridges embodying a
claimed invention – claim for infringement –whether an
implied licence to import, sell and use patented goods is conferred
upon sale without restriction – consideration of United
Kingdom authorities – whether modifications to goods
extinguishes any such implied licence – construction of terms
of patents – application of construction to applicants'
embodiment – comparison with respondents' embodiment
– termination of licence arising from sale sub modo.
TRADE MARKS – claim for infringement – whether word
"Epson" on respondents' goods is used in a trade mark
sense.
TRADE MARKS – construction of s 148 of the Trade Marks
Act 1995 (Cth) – whether respondents' conduct falls
within s 148 – whether s 148 imposes a statutory duty and
associated civil right of action for breach of said duty.
TRADE PRACTICES – whether use of word "new" to
describe remanufactured goods is misleading or deceptive. CONTRACTS
– breach of settlement deed – consideration of
appropriate remedy. Competition and Consumer Act 2010
(Cth) Schedule 2 ss 18, 29.
Cahill v Kiversun Pty Ltd; Molonglo Group (Australia) Pty Ltd v
Cahill & Anor [2017] VSC 641
CONTRACT – Vendor and purchaser – Whether binding
agreement for the sale of land – validity of execution
– Whether a conditional offer – Whether intention to be
bound – Consideration – Construction of terms.
CONTRACT – Whether vendor disentitled from relying on
non-compliance with condition by reason of prevention
principle.
CONTRACT – Availability of specific performance –
Appropriate form of order.
TRADE AND COMMERCE – Australian Consumer Law – Whether
representations made and/or whether misleading or deceptive –
Whether reliance in any event.
Mallet v Expedia Australia Pty Ltd (Civil Claims) [2017] VCAT
1911
Overseas holiday booked via a website – consumers unhappy
with the condition of the resort – consumers assert that the
website contained misleading and deceptive representations as to
the quality of the resort, contrary to s18 of the Australian
Consumer Law – consideration of whether the contents of
the website were misleading and deceptive – identity of the
entity which operated the website.
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.
