In the media
Spotless settles class action for $95 million
Investors in Downer Group subsidiary Spotless have reached
a $95 million settlement of a class action against the facility
services business in the alleged Spotless had engaged in misleading
and deceptive conduct when it provided its FY16 Guidance on 25
August 2015 (22 May 2020).
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Holden agrees to negotiate in good faith
The Morrison Government welcomes GM Holden's guarantee
to negotiate with car dealers in good faith, after its decision to
withdraw from the Australian market. ACCC has found that GM Holden
was placing undue pressure on dealers to accept their compensation
package by 31 May. The ACCC found this deadline was
'unnecessary and unfair' and has advised it was preparing
for court action had Holden not changed its position (22 May 2020).
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Crunch time for peanut butter as battle heads to High
Court
A long-running and costly legal stoush over peanut butter
jars is bound for the High Court, after US food giant Kraft Heinz
confirmed it would take the matter to Australia's highest
court. . Both parties counter-sued one another in the Federal Court
for misleading and deceptive conduct under competition and consumer
law (20 May 2020).
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Views sought on issues for draft news media and digital
platforms bargaining code
The ACCC is seeking views to inform its work on developing
a new draft mandatory code that will address bargaining power
imbalances between Australia's news media businesses and Google
and Facebook (19 May 2020).
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Police COVID-19 efforts boosted by new cybercrime
officers
Additional police officers have been allocated to the
Cybercrime Squad as COVID-19 restrictions see a rise in cybercrime
reports. Eight additional investigators have been added to the
Cybercrime Squad following a noticeable increase in online scams,
including vendors selling personal protective equipment for vastly
elevated prices (14 May 2020).
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MMS Australia fined $151,200 for alleged unlawful
advertising
The TGA has issued twelve infringement notices totalling
$151,200 for the alleged unlawful advertising of Miracle Mineral
Supplement and other medicines. The TGA is concerned about the
harmful effects that can be caused by the ingestion of MMS, and has
published an updated safety alert to warn consumers (13 May 2020).
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Queensland Yoghurt pays penalty for failing to disclose
gelatine ingredient
Queensland Yoghurt Company Pty Ltd (QYC) has paid a
penalty of $12,600 after the ACCC issued it with an infringement
notice for allegedly misleading consumers by omitting gelatine as
an ingredient in some of its yoghurt products (15 May 2020).
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Court orders $6m in penalties against Bupa and
compensation for consumers
The Federal Court has ordered that Bupa Aged Care
Australia Pty Ltd (Bupa) pay $6 million in penalties for making
misleading representations and wrongly accepting payments for extra
services not provided or only provided in part to residents at 20
aged care homes (12 May 2020).
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Guidelines will assist industry to comply with new
laws
The laws prohibit electricity retailers from keeping
consumer and small business prices unnecessarily high when costs
fall, and prohibit generators from inflating wholesale prices or
blocking access to critical contracts, which could increase retail
prices. The laws will form part of the Competition and Consumer Act
and come into effect on 10 June 2020 (11 May 2020).
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Practice and regulation
Guidelines on Part XICA - Prohibited conduct in the
energy market
These guidelines set out how the ACCC will interpret Part
XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they
explain the general approach the ACCC will take in investigating
alleged contraventions of Part XICA (prohibiting certain conduct
involving retail pricing, financial contract markets and
electricity spot markets). Part XICA will be in effect from 10 June
2020 to 1 January 2026 (11 May 2020).
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News media bargaining code: Concepts paper
The ACCC has released a concepts paper seeking views on
each of the issues to be covered in a mandatory code to address
bargaining power imbalances between Australian news media business
and each of Google and Facebook. Responses are due by 5 June 2020.
View the
concepts paper, (19 May 2020).
Container Refund Scheme - price monitoring review:
issues paper
While the Queensland Government anticipates that beverage
manufacturers will increase the price of beverages as a result of
the scheme, this review was commissioned to ensure consumer
interests are protected from unjustified pricing behaviours.
Submissions are due by close of business 12 June 2019. They can be
lodged online or via post here.
More...
Cases
'Cash Bazaar Pty Ltd v RAA Consults Pty Ltd (No
2) [2020] FCA 636
CONSUMER LAW – misleading or deceptive conduct
– pre-contractual representations – alleged
contraventions of s. 18 of the Australian Consumer Law –
where first applicant entered into franchising agreements allegedly
in reliance on representations made to its sole director and
shareholder (the second applicant) with respect to guaranteed
income and capital growth – where alleged that first
respondent would pay the guaranteed income – where first
applicant entered into a shareholders agreement with the second
respondent allegedly in reliance on representations made to the
second applicant with respect to guaranteed payments – where
representations allegedly made by various officers and employees of
the first respondent – where first and second respondents
ceased making payments to the first applicant – where price
of the franchising agreements did not increase –
identification of the true nature of the representations –
whether representations were as to future matters within the
meaning of s. 4 of the Australian Consumer Law – whether
respondents had reasonable grounds for making the
representations
Competition and Consumer Act 2010 (Cth.) Sch. 2, Australian
Consumer Law ss. 2, 4, 18, 236
Corporations Act 2001 (Cth.) s. 1305; Trade Practices Act 1974
(Cth.) s. 51A (repealed)
Australian Competition and Consumer Commission v
BlueScope Steel Limited (No 2) [2020] FCA
625
PRACTICE AND PROCEDURE – application to amend
originating application to add a new claim for declaratory relief
and pecuniary penalty under s 76 of the Competition and Consumer
Act 2010 (Cth) – whether claim for pecuniary penalty is
time-barred under s 77(2) of the Competition and Consumer Act 2010
(Cth) – application of rr 8.21 and 1.32 to 1.35 of the
Federal Court Rules 2011 –whether new claim for relief arises
out of the same facts, or substantially the same facts, as those
already pleaded to support an existing claim for relief –
where conduct the subject of the new claim for relief allegedly
occurred partly within and partly outside limitation period –
leave granted for applicant to amend originating application
– date from which amendment to take effect – no order
made as to costs. Competition and Consumer Act 2010 (Cth)
Australian Competition and Consumer Commission v Bupa Aged
Care Australia Pty Ltd [2020] FCA
602
CONSUMER LAW – admitted contraventions of Australian
Consumer Law – whether agreed pecuniary penalty appropriate
having regard to all relevant circumstances – consideration
of relevant matters in determining amount of pecuniary penalty
– orders made in accordance with parties' proposal
Aged Care Act 1997 (Cth); Competition and Consumer Act 2010 (Cth)
Sch 2 ss 18(1), 29(1)(b), 29(1)(g), 36(3), 36(4), 224(2)
Harvard Nominees Pty Ltd v Tiller (No 2)
[2020] FCA 604
CONSUMER LAW - misleading or deceptive conduct - express
oral representations regarding involvement of party in proposed
leases - certain representations found to have been made - reliance
on representations - whether representations misleading or
deceptive - involvement in misleading or deceptive conduct -
causation of loss or damage - applicant not pursuing 'no
transaction' or 'different transaction' case - whether
detriment or disadvantage required - whether counterfactual
required to establish causation - whether entry into contractual
relations amounts to loss or damage - whether misleading or
deceptive conduct had continuing operative effect - no loss or
damage caused by misleading or deceptive conduct
CONSUMER LAW - misleading or deceptive conduct - non-disclosure of
deeds of assignment - terms of deeds falsified letter - whether
omission to disclose deeds misleading or deceptive - whether
applicant would have been able to terminate leases if the deeds had
been disclosed - whether respondents engaged in misleading conduct
involving non-disclosure
LANDLORD AND TENANT - equitable leases - assignment of equitable
interest in equitable lease - requirement of delivery of deeds -
whether deeds implemented - deeds held to be legally effective -
whether clause in leases prohibiting assignment applies to
equitable assignment - construction of leases - clause held to
prohibit assignment in equity
CONTRACT - prohibition on assignment - whether fundamental breach
or repudiation - application of general contractual principles to
leases - privity of estate between lessor and lessees not displaced
by equitable assignment - breach not going to root of contract -
fundamental breach or repudiation not established - application
dismissed
Acts Interpretation Act 1901 (Cth) s 15AC; Competition and Consumer
Act 2010 (Cth) sch 2 (Australian Consumer Law) ss 2, 13, 14, 18,
236, 237, 243; Competition and Consumer Act 2010 (Cth) s 139B;
Evidence Act 1995 (Cth) ss 50, 59, 81, 87, 135, 140, 142; Trade
Practices Act 1974 (Cth) ss 52, 75B, 82, 87; Fair Trading Act 2010
(WA) s 111
Canon Finance Australia Limited v Reliance Medical Practice
Pty Ltd & Ors (No 7) [2020] NSWSC
554
CONSUMER LAW – Competition and Consumer Act 2010
(Cth) – Australian Securities and Investment Commission Act
2001 – misleading and deceptive conduct – persons
involved in the contravention – contract for IT equipment,
software and services – financing of contract by commercial
lease - oral representations made about efficiency of IT system to
be supplied – contract repudiated – hypothetical
question of misrepresentation – misrepresentation a question
of fact – measure of loss
Oxygen Funding Solutions Pty Ltd v
Dick-Telfar [2020] NSWSC
582
(1) Judgment for the plaintiffs in the sum of $2,351,780.
Defendants have not made out their claims for relief under the
cross-claim since they have established neither equitable fraud,
nor that the plaintiffs' conduct was unconscionable within the
meaning of that term under s 12CA of the ASIC Act or any relevantly
causative misleading or deceptive conduct by the plaintiffs.
CONTRACTS — Remedies — money claim made under loan
agreement — whether attempts to discharge debt by refinancing
were frustrated by conduct of the lenders
CONTRACTS — Unconscionable conduct — Australian
Securities and Investments Commission Act 2001 (Cth) s 12CA —
whether interest rates in the loan agreement unconscionable
Legislation
Commonwealth
Telecommunications Legislation Amendment (Competition and
Consumer) Bill 2019
Finally passed both Houses 14 May 2020
Introduced with the Telecommunications (Regional Broadband Scheme)
Charge Bill 2019, the bill amends the: Competition and Consumer Act
2010 and Telecommunications Act 1997 in relation to: Layer 2
bitstream services; and statutory infrastructure providers;
Competition and Consumer Act 2010 and Telecommunications Act 1997
and two legislative instruments in relation to local access lines;
Competition and Consumer Act 2010, Telecommunications Act 1997 and
Telecommunications (Consumer Protection and Service Standards) Act
1999 in relation to funding of fixed wireless broadband and
satellite broadband; and National Broadband Network Companies Act
2011 to require NBN Co to provide certain data about premises
connected, or due to be connected, to the NBN. Also repeals four
declarations.
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.
