In the media
Poker machines 'could breach consumer law'
Lawyers say poker machines could be considered misleading
and deceptive under consumer law. A potentially landmark case
to have poker machines declared in breach of Australian consumer
law is being considered by a leading Melbourne law firm (22 October
2015).
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ACCC working to ensure a successful Food and Grocery
Code
Chairman Rod Sims said he is confident the Code can
succeed in achieving its objectives. It can redress the imbalance
in bargaining power that often exists between suppliers and larger
grocery retailers by prohibiting certain types of unfair conduct,
and by requiring retailers to deal with suppliers in good faith at
all times (21 October 2015).
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ACCC report on the private health insurance
industry
The ACCC has released a report on the private health
insurance industry, highlighting concerns about the impact of
complex information on consumers and the market. Current practices
by some insurers are at risk of breaching the consumer laws (20
October 2015).
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Government's Financial System Inquiry Report
Response
The Government has released its response to the Murray Financial System Inquiry
Report. The
Government Response has accepted all but 1 of the Murray
Financial system Inquiry's 31 recommendations. The Government
agrees to provide ASIC with a financial product intervention power
to enable it to modify, or if necessary, ban harmful financial
products where there is a risk of significant consumer detriment.
The response sets out an agenda for action in the next year.
Banks warned against gouging customers to cover cost of
industry changes
Consumer advocates say banks do not need to gouge
customers to cover costs raised by the Government's proposed
changes to banking and superannuation system (20 October
2015).
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Court imposes penalty for false or misleading claims by
Homeopathy Plus and Ms Frances Sheffield
The Federal Court ordered Homeopathy Plus! Pty Ltd to pay
penalties of $115,000 and its director, Ms Frances
Sheffield, to pay $23,000 in penalties for making false or
misleading representations about the effectiveness of the whooping
cough vaccine and homeopathic remedies as an alternative to the
whooping cough vaccine, in breach of the Australian Consumer Law
(14 October 2015).
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Mortgage broking firm responds to ASIC's concerns
about misleading advertising in Chinese language
Elite Mortgage Brokers, a Melbourne-based Chinese mortgage
broking firm, has recently agreed to make changes to its website
and print advertisements in response to concerns raised by ASIC.
The regulator was concerned that statements claiming a '100%
success rate' were likely to be misleading because they suggest
that credit will be provided to all applicants (13 October
2015).
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'Effects test' to protect farmers
Amending section 46 of the Competition and Consumer Act to
include an "effects test" will help curtail
"reprehensible" anti-competitive behaviour by big
businesses that hurts farmers, says Queensland LNP Senator Matt
Canavan (12 October 2015).
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Stronger compliance, better community access under
liquor gaming reform
The State's liquor regulator will be boosted with
extra compliance officers and the community given access to a new
merit-based appeal of licensing decisions, to support stronger
liquor laws in NSW. A new regulator, Liquor and Gaming NSW, will
replace the Office of Liquor Gaming and Racing (10 October 2015).
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In practice and courts, published reports
New Small Business Protections From Unfair Contract
Terms
Minister for Small Business and Assistant Treasurer, has
announced the extension of consumer unfair contract term
protections to small businesses. Important changes will cover
standard form contracts where at least one of the parties employs
less than 20 people, and where the upfront price of the contract
does not exceed $300,000 or $1 million for contracts longer than 12
months. The Small Business and Unfair Contract Terms
Bill will extend unfair contract term
protections to small businesses through amendments to the
Australian Consumer Law and Australian Securities and
Investments Commission Act 2001 (13 October 2015).
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Regulation Impact Statement (RIS) on free range egg
labelling
After four weeks of national consultation, a further RIS
will outline final options and a cost-benefit analysis, which
ministers will consider at the next Consumer Affairs Forum in
Canberra in February. Feedback closes 2 November.
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Cases
ACCC Accepts Undertaking from Airbnb and eDreams for
Drip Pricing
The Australian Competition and Consumer Commission (the
ACCC) has accepted court enforceable undertakings from Airbnb
Ireland (Airbnb) and Vacaciones eDreams, SL (eDreams) following
concerns that the companies made online price representations to
consumers (20 October 2015). More...
Comité Interprofessionnel du Vin de Champagne
v Powell [2015] FCA 1110
CONSUMER LAW – Champagne wines and non-Champagne
sparkling wines – wine education and events business –
use of business name and persona "Champagne Jayne"
– internet and social media – reference to and
promotion of Champagne wines and sparkling wines – meaning of
Champagne – French controlled appellation of origin –
alleged contraventions of ss 18 and 29 of the Australian Consumer
Law – alleged misleading or deceptive conduct and false
representations – whether difference between Champagne wines
and sparkling wines made clear – whether sparkling wines
represented as Champagne wines – whether representation of
affiliation with Champagne sector – identification of
relevant class – whether secondary meaning of Champagne
– contraventions established in part. TRADE AND
COMMERCE – Australian Grape and Wine Authority Act
2013 (Cth) – bilateral wine-trading agreement between
Australia and European Community – protection of Champagne as
registered geographical indication – alleged offences under
ss 40C and 40E – promotion of sparkling wines – whether
sparkling wines advertised for sale or sold – no offence
established. More...
Truong Giang Corporation v
Quach[2015] FCA 1097
TRADE MARKS – counterfeit goods – whether a
sign on a product was used as a trade mark – whether the sign
was used, or intended to be used, to distinguish the product from
goods dealt with or provided by others – whether the sign was
used to indicate the origin of the product – infringement of
a registered trade mark contrary to s 120 of the Trade Marks
Act 1995 (Cth) – whether the registered trade mark was
used on a product with the consent of the registered owner of the
trade mark pursuant to s 123 of the Trade Marks Act 1995
(Cth). COMPETITION – misleading or deceptive conduct
arising from dealings in counterfeit goods – false or
misleading representations – whether representations made
were false or misleading contrary to ss 18(1) and 29(1) of the
Australian Consumer Law (Sch 2 to the Competition and Consumer
Act 2010 (Cth)) – principles applicable to misleading or
deceptive conduct, or false or misleading representations,
regarding the sale of counterfeit goods. TORTS –
passing off – misrepresentations as to the source of a
trader's goods – whether conduct is misleading or
deceptive, or likely to mislead or deceive – whether there is
a misrepresentation that is likely to lead the public astray as to
the source and origin of the goods – principles applicable to
the tort of passing off. TORTS – joint tortfeasor
– whether a director of a company can be regarded as a joint
tortfeasor in respect of a tort of the company. DAMAGES
– compensatory damages in respect of an infringement of a
registered trade mark – the appropriate measure of damage
– additional damages pursuant to s 126(2) of the Trade
Marks Act 1995 (Cth) – principles applicable to the
award of additional damages. More...
DHR International, Inc a company incorporated in
Delaware in the United States of America v Challis
[2015] NSWSC 1567
PRACTICE AND PROCEDURE – interlocutory injunctions
– application to compel defendant to prevent access to
internet blog posts, and to restrain defendant from publishing
injurious falsehoods – consideration of undesirability of
framing injunctions in terms of the elements of the tort
TORTS – injurious falsehood – elements of the tort
– relevance of the principle of free speech to interlocutory
injunction to restrain injurious falsehoods – held, refusing
the application, that insufficient evidence was adduced to
establish a serious question to be tried as to the falsity of the
statements TRADE PRACTICES – misleading or deceptive
conduct – application for interlocutory injunction –
held, refusing the application, that insufficient evidence was
adduced to establish a serious question to be tried as to the
representations being misleading or deceptive, or as to their being
made in trade or commerce.
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Legislation
Iron Ore Supply and Demand (Commission of Inquiry)
Bill 2015
Establishes a full judicial commission of inquiry
into iron ore supply and demand, specifically the increases in
production by certain iron ore producing companies, and provides
for its functions, powers and operations, and creates offences. The
commission is required to submit its report to the Presiding
Officers within three months for tabling in both chambers.
Second reading moved 01 Jun 2015; Removed from the Notice Paper in
accordance with (SO 42).
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