In the media – National
Woolworths fined $9m for involvement in laundry
detergent cartel
The Federal Court orders Woolworths to pay penalties totalling $9
million for its involvement in a laundry detergent cartel (03 June
2016).
More...
ACCC warns against potentially misleading claims about
the tax benefits of health insurance
The ACCC is warning consumers to be alert to potentially
misleading claims about the tax benefits of obtaining private
health insurance. The ACCC considers that these companies are
potentially misleading consumers and gaining an unfair competitive
advantage by making representations that leverage off many
consumers' lack of knowledge about the application of the
Medicare Levy Surcharge (02 June 2016).
More...
ACCC authorises collective bargaining by chicken growers
in Western Australia
The ACCC has issued a final decision allowing members of the WA
Broiler Growers Association to collectively bargain with the
chicken processor they supply. Authorisation is granted for ten
years. These collective bargaining arrangements are likely to
result in transaction cost savings and give broiler growers greater
say in the terms and conditions of their contracts with chicken
meat processors (31 May 2016).
More (ACCC Media)...
More (ACCC authorisations and notifications register
entry)...
Condor Blanco Mines Limited - Declaration of
Unacceptable Circumstances and Orders by TPA
The Panel considered that the acquisition of control over voting
shares in Condor did not take place in an efficient, competitive
and informed market. Condor shareholders and the market were not
aware of Condor's or EMC's relevant interest in Condor
shares, the nature of the interest or the circumstances of the
acquisition or Ms Philip's substantial holding and any
agreement giving rise to it (30 May 2016).
More...
ACCC to commence excessive surcharge compliance role on
1 September 2016
The ACCC will begin enforcing the ban on excessive surcharges for
large merchants on 1 September 2016. Surcharges are excessive when
they exceed the permitted cost of acceptance, which is defined in
the Reserve Bank of Australia's Payments System Board Standard.
More...
Former Sigma CEO and CFO sentenced for falsifying books
and giving false or misleading information
The former managing director and CEO of Sigma Pharmaceuticals Ltd
– Elmo De Alwis, and former chief financial officer –
Mark Smith, were sentenced for charges relating to falsifying
Sigma's books and giving false or misleading information to
Sigma's directors and auditors. Honour Judge Richard Smith said
that the offending was serious in nature and rejected a submission
that the offending was technical only (26 May 2016).
More...
In practice and courts, published reports
TP 035: Condor Blanco Mines Limited - Declaration of
Unacceptable Circumstances and Orders - 30/05/2016
The Panel has made a declaration of unacceptable circumstances (
Annexure A) and final orders (
Annexure B) in relation to an application dated 1 May 2016 by
Mr Joshua Farquhar in relation to the affairs of Condor Blanco
Mines Limited (see
TP15/27). The Panel considered that the acquisition of control
over voting shares in Condor did not take place in an efficient,
competitive and informed market.
More...
Treasury consultation paper: improving consumer outcomes
and enhancing competition in relation to credit card interest
rates
The Treasurer has released a consultation paper outlining
'reforms to provide greater legislative protection to
vulnerable consumers, to exert more competitive pressure on credit
card issuers and to provide consumers with the information they
need to make the best choices about how they use their credit
cards.' Interested parties may make a submission by 17 June
2016. More
(Treasury)...
More (Parliament)...
NSW Fair Trading: Service station data
collection
Service station operators across NSW are being asked to provide
certain information to NSW Fair Trading as a result of the
Biofuels (Return by Operators of Service Stations) Notice
2016 (the Notice) and the
Fair Trading (FuelCheck) Order 2016 (the Order). Both of
these instruments were published in the NSW
Gazette on 6 May 2016. The information will assist the NSW
Government to deliver reforms that will improve the regulation of
the biofuels mandate and encourage greater competition in the
retail fuel market.
Productivity Commission: Draft IP Report
The
Draft Productivity Commission Report on Intellectual Property
Arrangements, released today, is consistent with the
recommendations made by the
Harper Panel in relation to IP. It considers current
competition law exemptions relating to licensing or assignment of
IP property and exemptions from the National Access Regime.
Submissions on the draft report can be made until 3 June. A final
report is expected in August. More...
Cases
OXS Pty Ltd v Sydney Harbour Foreshore Authority
[2016] NSWCA 120
TRADE PRACTICES - misleading or deceptive conduct - whether
alleged representations were made by respondent - whether
representations were misleading or deceptive or likely to mislead
or deceive – where appellant alleged respondent failed to
disclose alleged consensus within the respondent of intention to
proceed to open tender when current lease expired – whether
appellant had reasonable expectation of disclosure where parties in
commercial negotiations – whether respondent had concluded
view of whether binding agreement had been entered– where
both parties had access to legal advice and appellant had no reason
to think that it could look to the respondent for advice –
whether appellant relied on non-disclosure – challenge to
primary judge's findings as to credit of witnesses –
whether consistent with considering inherent probabilities of
competing accounts and objective indicators TRADE PRACTICES -
misleading or deceptive conduct – loss of opportunity claim
by appellant – causation – whether opportunity lost was
of some commercial value – whether evidence established
respondent would have sold business had it known the true position
PROCEDURE - Miscellaneous procedural matters – declarations -
where findings of misleading conduct by primary judge – where
primary judge made no declaration that respondent engaged in
misleading or deceptive conduct – discretion of the Court -
where respondent sought declaration in general terms – where
declaration would be merely prefatory to an order for damages
– whether declaration of no utility.
Guirguis Pty Ltd & Ors v Michel's Patisserie System Pty
Ltd & Ors [2016] QDC 117
Judgment for the first, second and third defendants (on their
counterclaim) against the plaintiffs for $650,552.24.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – MISLEADING OR DECEPTIVE CONDUCT
– FRANCHISE AGREEMENT – FALSE REPRESENTATIONS -
"NO TRANSACTION" CASE – where representations
purported to have been made – whether representations relied
upon – where allegation that information should have been
disclosed – whether failure to disclose amounted to
misleading or deceptive conduct – whether representations not
outlined in deed of prior representations & questionnaire could
later be relied upon.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
DISCHARGE, BREACH AND DAMAGE – where express exclusions in
contract – whether monetary recovery available.
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR
NEGLIGENCE – DAMAGE – CAUSATION – where express
exclusion for liability for negligence in contract – whether
monetary recovery available.
The plaintiffs' primary claim is a "no transaction"
case—namely that they would not have entered into the
franchise business and related agreements (the agreements) but for
the defendants' alleged misleading or deceptive conduct
(contrary to the Australian Consumer Law).
Zheng v Sunning Pty Ltd (Civil Claims) [2016] VCAT
809
Civil Claims List; sale of a business; dispute over payment of
stock; pursuant to the contract where the stock more than 12 months
old was not defined as stock; the stock in relation to the claim
was five to six years old; misleading and deceptive conduct;
misrepresentation about the value of the stock; reliance on the
representation; unconscionable conduct; Australian Consumer Law
ss.18, 20, 21, 236; Australian Consumer Law and Fair Trading
Act 2012 ss.182(3)(a) and (b), 184(2)(b)(ii).
Legislation - Commonwealth Bills
Tobacco Amendment Bill 2016
Legislative Assembly 25/5/2016 Moved second reading, debate
adjourned
This Bill is for an Act to amend the Tobacco Act 1987 to
prohibit smoking in outdoor dining areas, to regulate the sale,
promotion and use of e-cigarette products and for other
purposes.
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.
