In the media
Some car dealers misleading consumers over safety ratings,
ANCAP tells ACCC
Some car dealers are peddling misinformation about the safety
ratings of new cars in order to secure a sale, an independent
vehicle safety advocate says. The Australasian New Car Assessment
Program (ANCAP) cited examples in its submission to the Australian
Competition and Consumer Commission's (ACCC) market study of
new cars (02 December 2016).
Delivering strengthened competition law – Section 46
legislation introduced
The Turnbull Government has today introduced legislation to
strengthen Australia's competition law, reforms that will
benefit consumers, businesses and the economy by boosting
innovation, opening new markets and increasing choice for
communities.
The Harper Review recommended strengthening section 46 of the
Competition and Consumer Act 2010 after finding that current
misuse of market power law is not reliably enforceable and does not
effectively target and deter anti-competitive conduct, to the
detriment of Australian consumers (01 December 2016).
ACCC takes action against MSY alleging misrepresentation of
consumer guarantees
The ACCC has instituted proceedings in the Federal Court against
MSY Technology Pty Ltd, MSY Group Pty Ltd, and M.S.Y. Technology
(NSW) Pty Ltd (MSY Technology) alleging that MSY Technology has
misrepresented consumers' rights to remedies for faulty
products (01 December 2016).
ACCC proposes to deny banks' application to
collectively bargain over Apple Pay
The ACCC has issued a draft determination proposing to deny
authorisation to the Commonwealth Bank, Westpac, NAB and Bendigo
and Adelaide Bank 'to collectively bargain with and boycott
Apple on Apple Pay.' More detail on news
page (29 November 2016).
More...
ACCC takes
proceedings against ANZ and Macquarie bank for attempted cartel
conduct
On 25 November 2016, the ACCC brought Federal Court proceedings, by
consent, against Australia and New Zealand Banking Group Limited
and Macquarie Bank Limited alleging attempts to engage in cartel
conduct. The ACCC alleges that on various dates in 2011, ANZ or
Macquarie tried to influence the ABS MYR Fixing Rate published on
that day, and therefore attempted to breach the cartel provisions
of the Competition and Consumer Act 2010 (25 November
2016).
ACCC takes action against Meriton over online
reviews
The ACCC has instituted proceedings in the Federal Court against
Meriton Property Services Pty Ltd, trading as 'Meriton Serviced
Apartments' (Meriton). The ACCC alleges that Meriton engaged in
misleading or deceptive conduct in connection with the posting of
reviews of its properties on the TripAdvisor website (24 November
2016).
Business hates the ACCC
Competition regulator Rod Sims has plenty of work to do to improve
relations with business judging from a survey of leaders from a
range of industries undertaken as part of an annual report card.
The most damning criticism was in relation to the ACCC's
openness and transparency in its dealings with business (22
November 2016).
More...
In practice and courts, published reports
ACCC completes first Regulator Performance Framework
review
The ACCC has released its first Regulator Performance Framework
Review, in which it self assesses against six KPIs (22 November
2016).
media release
report
Reforms to Strengthen Real Estate Sector
The NSW Government has eased its Real Estate and Property
Services Industry Reform Paper that aims to strengthen
industry standards and better protect consumers and increasing
transparency and accountability and strengthening trust account
processes. The paper is available for feedback at www.fairtrading.nsw.gov.au.
Legislation to implement these reforms is expected to be introduced
to Parliament in the first half of 2017.
Have your say on the Australian Consumer
Law
The ACL review is being undertaken to establish whether the law has
been effective and how it can be improved to benefit traders and
consumers, without imposing unnecessary red tape.
The Australian Consumer Law Review
Interim Report is open and can be accessed at consumerlaw.gov.au.
Formal submissions and comments are encouraged. Submissions close
on 9 December 2016 ahead of the final report in March 2017.
Cases
Insight Radiology Pty Ltd v Insight Clinical Imaging Pty
Ltd [2016] FCA 1406
TRADE MARKS – appeal of decision of the Registrar to refuse
to register trade mark – whether marks substantially
identical – whether owner of the trade mark for the purposes
of section 58 and 59 of the Trade Marks Act 1995 (Cth)
– construction of the meaning of "applicant" under
the Trade Marks Act 1995 (Cth) - whether there was a valid
assignment of trade mark– whether use of the applicant trade
mark likely to deceive or cause confusion – whether use of
the trade mark would be contrary to law – whether defence of
use in good faith available– whether defence of right to use
marks under the Trade Marks Act 1995 (Cth) available
– whether there was honest concurrent use – whether use
of the applicant trade mark constituted conduct that was misleading
or deceptive, or likely to mislead or deceive – whether false
representations – whether passing off – whether breach
of the rule in Browne v Dunn – whether individual
director a joint tortfeasor with the company – cross claim
– application for cancellation or rectification of the Trade
Mark Register - inherent adaptability of trade marks to distinguish
– whether prior inconsistent application for
registration.
Aquatic Air Pty Ltd v Siewert [2016] NSWCA
318
TRADE PRACTICES / CONTRACTS – appeal from decision of primary
judge refusing to set aside share sale agreements and make award
for damages – shares in third and fourth respondents sold to
fifth respondent – where agreements allegedly vitiated by
misleading and deceptive conduct in failing to disclose purported
GST liability – whether representations were made as to GST
liability of company – where representation reliant upon
warranties in agreement – whether such representations, as
warranted, were made – whether the warranties could be
severed from agreement –whether representations, if made,
were false – effect of A New Tax System (Goods and
Services Tax) Act 1999 (Cth), s.38-10(5) – whether
company not liable for GST – whether representations made as
to liability of company to pay employee and redundancy entitlements
– cross-appeal from decision of primary judge that option for
sale of a property had not been validly exercised – where
option for sale had been exercised without payment of a deposit as
contractually required – whether contractual right to vary
price extended to capacity to waive requirement for payment of a
deposit PERSONAL PROPERTY – alienation of personal property
– assignment of causes of action – where causes of
action derive from Competition and Consumer Act 2010 (Cth)
and Australian Securities and Investments Commission Act
2001 (Cth) – whether s.477(2)(c) of Corporations Act
enables assignment of otherwise unassignable cause of action.
Lu v Li (Building and Property) [2016] VCAT
1998
Applicant owner found to have incurred loss and damage because of
the misleading and deceptive conduct of a registered builder, the
second respondent, who obtained warranty insurance but took no part
in the applicant's works.
First respondent sought apportionment against person who performed
the works, the third respondent, and the relevant building
surveyor, the fourth respondent, as alleged concurrent wrongdoers
pursuant to the provisions of Part IVAA Wrongs Act 1958
(Vic).
First respondent's apportionment proceeding against fourth
respondent subsequently dismissed by consent. Owner subsequently
settled with first respondent prior to hearing, but first
respondent remained a party for the purpose of apportionment.
Applicant's claim against the second respondent found to be an
apportionable claim, notwithstanding that apportionment was not
sought by the second respondent by way of defence.
Respective liability of each of the first, second and third
respondents to the applicant found to be limited under Part IVAA
Wrongs Act 1958.
Legislation
Competition and Consumer Amendment (Misuse of Market
Power) Bill 2016
Introduced and read a first time 01 December 2016 Second
reading moved 01 December 2016.
The Bill amends the Australian Consumer Law (ACL) (Schedule 2 of
the Competition and Consumer Act 2010) to alter the
definition of substantial transformation as it applies to the safe
harbour provisions of the ACL.
The Bill is primarily intended to simplify the tests used to
justify a country of origin 'made in' claim by clarifying
what substantial transformation means and removing the '50 per
cent production cost' test. The substantial transformation test
in its present form is inadequate and many consumers are confused
or feel they are being misled, as it encourages meaningless claims
like 'Made in Australia from local and imported
ingredients' when food is only minimally processed in
Australia.
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.
