In the media
Samsung in court for misleading phone water resistance
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The ACCC has instituted proceedings in the Federal Court
against Samsung Electronics Australia Pty Ltd (Samsung) alleging it
made false, misleading and deceptive representations in advertising
the water resistance of various 'Galaxy' branded mobile
phones (04 July 2019).
More...
Optus customers urged to check for refunds
Optus customers are encouraged to check if they have
received an email or SMS from Optus about a refund they may be
entitled to in relation to Optus's Direct Carrier Billing
(DCB) third-party billing service. In February
2019, following ACCC action, the Federal Court ordered Optus to pay
penalties of $10 million for making false or misleading
representations about charges for digital content (03 July 2019).
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Mitsubishi ordered to repay customer over
'misleading' fuel label
A car giant has been ordered to repay a customer who
fought back over a "misleading" fuel label attached to
his new four-wheel drive. VCAT ordered the dealer to repay the
customer $39,500, although Mitsubishi, which is handling the matter
on Berwick Mitsubishi's behalf, is now appealing the decision
in the Supreme Court (01 July 2019).
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ACCC to enforce new rules for electricity
retailers
The ACCC will be enforcing new rules that will benefit
most electricity consumers by both limiting standing offer
electricity prices and imposing new advertising rules on
electricity providers under the new Electricity Retail Code (01
July 2019).
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$2.3M penalty for fake Indigenous Australian art
The Federal Court has ordered Birubi Art Pty Ltd (in
liquidation) to pay $2.3 million for making false or misleading
representations about products it sold in breach of the Australian
Consumer Law. In October 2018, following action by the ACCC, the
Federal Court found that Birubi falsely claimed that products it
sold were hand painted by Australian Aboriginal persons and made in
Australia when that was not true (27 June 2019).
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Red Rich Fruits amends contracts with growers after ACCC
concerns
A trader in apples, pears and other fresh fruits has
agreed to change its horticulture produce agreements with growers
after the ACCC raised concerns the agreements contained unfair
contract terms, and terms which did not comply with the
Horticulture Code of Conduct (25 June 2019).
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ASIC takes Former Murray Goulburn execs to court
The corporate watchdog has taken former executives of
dairy group Murray Goulburn to the Federal Court over alleged
breaches of the Corporations Act, and further alleges that Helou
engaged in misleading or deceptive conduct by approving the
February 2016 announcement (25 June 2019).
More...
Practice and Regulation
Annual Federal Courts and Tribunals Fee increases from 1
July 2019
The fees payable in the Federal Courts and Tribunals will
increase from 1 July 2019 to reflect changes to the consumer price
index over the past financial year. This is an automatic increase
provided by the relevant fees regulations. A copy of a notice
published in the Government Notices Gazette on 4 June 2019 setting
out the new fees payable here.
Cases
Australian Competition and Consumer Commission v Woolworths
Limited [2019] FCA
1039
CONSUMER LAW – representations of
"biodegradable and compostable" made on labelling of
disposable dish and cutlery products sold by respondent –
identification of nature of representations – whether
representations were as to "future matters" within
meaning of s 4 of the Australian Consumer Law – consideration
of meanings of "future matter" and "reasonable
grounds" in s 4 – whether respondent had reasonable
grounds for representations – application dismissed
CONSUMER LAW – misleading or deceptive conduct –
whether representations of "biodegradable and
compostable" contravened ss 18, 29 or 33 of the Australian
Consumer Law – consideration of factors relevant to
identifying "ordinary and reasonable" consumer –
application dismissed. Competition and Consumer Act 2010
(Cth) Sch 2, Australian Consumer Law (Cth) ss 4, 18, 29, 33
Australian Competition and Consumer Commission v
Kimberly-Clark Australia Pty Ltd [2019] FCA
992
CONSUMER LAW – misleading and deceptive conduct
– where the applicant alleges contraventions of ss 18, 29(1)
and 33 of the Australian Consumer Law, being Schedule 2 to the
Competition and Consumer Act 2010 (Cth)
(ACL) arising out of the respondent's
promotion of flushable wipes – where the applicant alleges
that flushable wipes caused harm to household and municipal
sewerage systems – whether representations were with respect
to a future matter pursuant to s 4 of the ACL – whether
flushability representation was false, misleading or deceptive
– flushability representation was not false, misleading or
deceptive
Australian Consumer Law, being Schedule 2 to the Competition
and Consumer Act 2010 (Cth) ss 4, 18, 29(1), 33
Evidence Act 1995 (Cth) s 140
Australian Competition and Consumer Commission v Birubi Art
Pty Ltd (in liq) (No 3) [2019] FCA
996
CONSUMER LAW – contraventions of ss 29(1)(a), 33,
Australian Consumer Law (ACL) – where
respondent wholesaler engaged in conduct likely or liable to
mislead or deceive potential purchasers by implying that five
product lines were hand-painted by Australian Aboriginal persons
and were made in Australia – consideration of principles for
assessing appropriate pecuniary penalties where respondent engaged
in a multitude of overlapping contraventions – consideration
of the primacy of deterrence in setting an appropriate penalty
– where penalties still have general deterrent effect despite
the respondent being in liquidation – where public importance
in sending a strong message of deterrence is heightened given the
economic, social and cultural harms to Indigenous Australians which
may flow from misrepresentations regarding the provenance of art
and souvenirs as Australian Indigenous art and artefacts –
total pecuniary penalties of $2.3 million imposed
Australian Consumer Law ss 29(1)(a), 33, 224
Resale Royalty Right for Visual Artists Act 2009 (Cth)
Mottershead Investments Pty Ltd v Aircraft Support
Industries Engineering Pty Ltd (in Liquidation) &
Ors [2019] FCCA
1375
CONSUMER LAW – Representations as to future conduct
– promise to pay outstanding invoices – whether false
or misleading – whether unconscionable conduct –
whether statements relied upon – whether chose in action
assigned.
CONTRACT – Outstanding invoices – contractual warranty
to pay – breach of warranty – assignment of debt.
Australian Consumer Law 2010 (Cth)
The second respondent is to pay the applicant the sum of $209,000
within 14 days.
Balls & Tackles Pty Limited v International
Management Group of America Pty Ltd [2019]
NSWDC 290
TRADE PRACTICES – misleading and deceptive conduct
– whether representations made – reliance –
authority to make representations – payment of bribes –
unconscionable conduct – equitable compensation
Australia and New Zealand Banking Group Limited v James
(No 3) [2019] NSWSC
832
JUDGMENTS AND ORDERS – Amending, varying and setting
aside – Fraud, misrepresentation or suppressions of material
fact – whether to set aside judgment by consent –
whether misleading and deceptive conduct by plaintiff –
discretionary considerations – whether defendant has arguable
defence – delay – whether delay in advancing case of
misleading and deceptive conduct disentitles defendant to relief
MISLEADING AND DECEPTIVE CONDUCT – Australian Consumer Law
– silence – whether reasonable expectation of being
informed of information concerning activities of receivers –
whether disclosure required by terms of guarantee – whether
reasonable expectation of disclosure of other matters –
reliance – whether defendant relied on absence of that
information – whether knowledge of that information would
have led defendant to not accept judgment by consent
CORPORATIONS – Receivers and managers – duties –
s 420A of Corporations Act 2001 (Cth) – whether
arguable defence based on this provision – scope and function
of s 420A – rights of guarantors – standard imposed on
receivers – exclusion by contract.
Collective Concepts Pty Ltd v SMC Gasworks Pty
Ltd [2019] NSWSC
789
CIVIL PROCEDURE – Preliminary discovery – to
determine whether to commence proceedings – to identify
potential cause of action for breach of warranty or statutory
misleading and deceptive conduct - Australian Consumer Law
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.
