In the media
Australian Solar Anti-Dumping Investigation May Be
Terminated
The Australian Anti-dumping Commission has been tasked with
investigating claims of alleged dumping of some solar panels
exported from China. "Dumping" is a form of predatory
pricing, where manufacturers export a product to another country at
a price either below the price charged in its domestic market or
below its cost of production (08 April 2015).
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ANZ wins penalty bank fees class action
appeal
In Paciocco v Australia and New Zealand Banking Group
Limited [2015] FCAFC 50 the Federal Court Full Court reversed
Justice Gordon's decision in 2014 that the Late Payment Fees
charged by ANZ on Mr Paciocco's consumer credit cards
constituted a penalty at common law and a penalty in equity. The
Federal Court ruled in February that late payment fees the bank
charged customers were extravagant, exorbitant and unconscionable
(08 April 2015).
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Actrol Parts Pty Ltd to pay $520,000 for carbon tax
related false or misleading representations
The Court found Actrol had made false or misleading
representations in a letter sent to approximately 8000 of its
customers and posted on its website concerning the reasons for
Actrol implementing significant increases in the price of certain
hydrofluorocarbon (HFC) refrigerants (R134a, R410A, R404A, R407C
and R507) which took effect from 1 July 2012 (08 April 2015).
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AGL 'misled' customers on discounts, SA court
told it will pay $785k compensation
Electricity retailer AGL will pay back $785,000 to customers the
Federal Court has ruled it misled. Dan Star for the ACCC said AGL
agreed a fine of $700,000 would be appropriate, based on other
similar matters and on AGL's prior record and said the court
also should make publication orders so affected customers and the
wider community knew AGL had engaged in misleading and deceptive
behaviour (01 April 2015).
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Small business critical of 'academic' Harper
review
Peter Strong from the COSBOA believes the review of competition
laws by economist Professor Ian Harper has watered down plans to
stop big companies using their market power to destroy smaller
rivals. The review recommended the law be changed to focus on
protecting competition rather than individual competitors using an
effects test, which would measure if competition in a market had
been substantially lessened (02 April 2015).
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Bruce Bilson Minister for small business says Harper
Competition Review offers to strengthen small business competition
powers
Bruce Bilson Minister for small business says Harper Competition
Review offers to strengthen small business power to collectively
bargain, even collectively boycott (01 April 2015).
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Competition watchdog fines liquor group for misleading
consumers with 'Aussie' beer made in China
The Consumer watchdog has fined a penalty of $10,200 for an
Australian liquor cooperative for selling Chinese made beer
labelled as an 'Aussie' product. The ACCC found the beer
was made in China, and ruled the label could mislead consumers. It
did not dispute whether Australian malt was used (31 March 2015).
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ACCC welcomes pro-competitive recommendations of Harper
review
The ACCC welcomes the release of the Competition Policy Review
Panel's final report. It sets out many pro-competitive reforms
which, if adopted, could significantly enhance economic
productivity over the years ahead. The ACCC particularly supports
the Report's findings on roads, shipping, intellectual property
and parallel imports (31 March 2015).
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ACCC v Origin Energy Electricity Limited [2015]
FCA 278: Origin To Pay $2 Million For Unlawful Door-To-Door Sales
Tactics
In the case of ACCC v Origin Energy Electricity Limited
[2015] FCA 278, the Federal Court has ordered Origin Energy
Electricity Limited (Origin) to pay $2 million in penalties in
relation to unlawful door-to-door selling practices in proceedings
brought by the ACCC. The Court also ordered Origin's marketing
company, SalesForce Australia Pty Ltd (SalesForce), to pay $325,000
in penalties (31 March 2015). More...
In practice and courts, published reports
Harper Review: Section 46 Recommendations, 31 March
2015
The Review found that the current s 46, which focuses on a
subjective "purpose" test does not sufficiently
distinguish between pro-competitive conduct and anti-competitive
conduct and is therefore deficient in its application by rendering
competition that should be welcomed, as conduct in breach of the
section. The panel has recommended that the test be altered so that
the focus is what objective effect the conduct has on competition
and whether that conduct substantially lessens competition. In the
Final Report, the panel has withdrawn support for a defence
previously advocated in the Draft Report. The recommended defence
stated that conduct would not fall within s 46 if it was: a
rational business decision by a corporation that did not have a
substantial degree of power in the market, and likely to have the
effect of advancing the long-term interests of consumers.
More...
Opinion: Effects test will hamper
competitors
Chris Bowen, AFR, 09 April 2015. Overview of the Harper
recommendation and legal challenges to amend section 46 of the
Competition and Consumer Act to include a so-called "effects
test". In general terms, an effects test is shorthand for
changes to the existing misuse of market power provision to include
conduct by firms with a substantial degree of market power that
have the purpose, effect or likely effect of substantially
lessening competition.
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Cases
Australian Competition & Consumer Commission v
Origin Energy Electricity Limited [2015] FCA
278
CONSUMER LAW – admitted contraventions – whether
orders sought by consent appropriate in the circumstances –
whether pecuniary penalties sought within the permissible range
– compliance program – publication order –
declaratory relief. The Federal Court of Australia (FCA) has
imposed a total of $2m and $405,000 as pecuniary penalties against
Origin Energy Electricity Limited and Salesforce Australia Pty Ltd,
respectively, in relation to unlawful door-to-door selling
practices. Competition and Consumer Act 2010 (Cth) s 4.
Competition and Consumer Legislation Amendment Act 2011
(Cth). More...
Paciocco v Australia and New Zealand Banking Group
Limited [2015] FCAFC 50
BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION
– whether various Dunlop Pneumatic Tyre Company Limited v New
Garage and Motor Company Limited for fees are penalties at law or
equity, or genuine pre-estimate of damage or compensation –
whether the relevant stipulations were for breach of term of
contract, collateral or accessory in the nature of security for,
and in terrorem of the primary stipulations, or for a further
contractual right or accommodation – the relevance of the
"tests" in Dunlop Pneumatic Tyre Company Limited v
New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC
79 to the construction and characterisation of the provisions
– whether the fees were extravagant or unconscionable –
whether the charging of the fees constituted unconscionable
conduct, unjust transactions or unfair contract terms under
Australian Securities and Investments Commission Act 2001
(Cth), National Consumer Credit Protection Act 2009 (Cth),
and Fair Trading Act 1999 (Vic). LIMITATION OF ACTIONS
– whether recovery statute-barred – construction of s
27(c) of the Limitation of Actions Act 1958 (Vic) –
whether it applied to a mistake of law. Appeal allowed. More...
Australian Competition and Consumer Commission v
Actrol Parts Pty Ltd [2015] FCA 312
CONSUMER LAW – misleading and deceptive conduct –
where the respondent admitted to making false, misleading or
deceptive representations regarding the reasons for increasing the
prices of products supplied by the respondent – where the
representations were express and implied – where the parties
submitted a statement of agreed facts, draft consent orders and
joint submissions on relief – whether the relief proposed by
the parties of a declaration, injunction, pecuniary penalty,
publication order, verification affidavit and an order for a
compliance program should be granted – the matters to be
considered in determining whether the pecuniary penalty proposed by
the parties is appropriate – Australian Consumer Law
(Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ss
18, 29. Held: Orders made for a declaration, injunction,
publication order, verification affidavit and implementation of a
compliance program. Pecuniary penalty of $520,000 imposed. More...
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