In the media
ACCC puts businesses on notice about 'made in'
country of origin claims
The ACCC is urging businesses to review their country of origin
labels now to ensure they comply with the Australian Consumer Law.
In addition to the general ACL obligations not to make false,
misleading or deceptive claims, businesses involved in the retail
supply of food will also be bound by the Country of Origin Food
Labelling Information Standard from 1 July 2018 (04 May 2017).
More...
ACCC releases statement of issues on proposed merger
between APN Outdoor Group Limited and oOh!media
Limited
The ACCC has released a Statement of Issues expressing preliminary
concerns about the proposed merger between APN Outdoor Group
Limited and oOh!media Limited. The ACCC's preliminary view is
that the merger is likely to substantially lessen competition in
the out-of-home advertising market. The loss of competition could
result in increased prices for advertisers, or lower levels of
service, quality, or innovation (04 May 2017).
More...
ACCC will not oppose Caltex's proposed acquisition
of Milemaker
The ACCC today announced that it has decided not to oppose the
proposed acquisition by Caltex of a 'chain of Victorian service
stations from Milemaker Petroleum'. This decision followed a
Statement of Issues released in March and was described by the ACCC
Chairman as a 'difficult decision' because 'competition
will be reduced'; the ACCC concluded, however, that that
reduction would not be substantia (04 May 2017).
More...
ACCC takes action against Ramsay Health Care for alleged
anti-competitive conduct
The ACCC has 'instituted proceedings in the Federal Court
against Ramsay Health Care Australia Pty Limited (Ramsay) for
alleged anti-competitive conduct involving misuse of market power
and exclusive dealing in the Coffs Harbour region' (01 May
2017).
More...
Banks Refused Permission to Collectively Bargain with
Apple over Digital Wallet Technology
The ACCC has issued a "Final Determination" denying a
group of Australian banks permission to collectively bargain with
Apple and collectively boycott Apple Pay. The decision was issued
on 31 March 2017, and had been foreshadowed in a ACCC press release
issued in November 2016 that stated that the ACCC was "not
currently satisfied that the likely benefits from the proposed
conduct outweigh the likely detriments (01 May 2017). More...
Reckitt Benckiser (Australia) Pty Ltd v ACCC
[2017] HCASL 86: High Court Upholds Record Fine against
Nurofen
In the case of Reckitt Benckiser (Australia) Pty Ltd v
ACCC [2017] HCASL 86 (5 April 2017), the High Court has
ordered the manufacturer of Nurofen to pay a $6 million fine for
misleading consumers with its specific pain relief range, after the
High Court rejected its latest appeal (28 April 2017). More...
Simplifying House Prices for Buyers
New underquoting laws come into effect on 1 May that will make
house sale prices clearer and more transparent for would-be buyers.
The new laws include requirements for how estate agents estimate
and advertise selling prices, making sure prospective buyers are
given clear information about comparable and recent property sales
in the same area (29 April 2017).
More...
ACCC takes action against Murray Goulburn
The ACCC has instituted proceedings in the Federal Court against
Australia's largest milk processor, Murray Goulburn Cooperative
Co. Limited (Murray Goulburn), alleging it engaged in
unconscionable conduct and made false or misleading representations
in contravention of the Australian Consumer Law. The ACCC also
alleges that former managing director Gary Helou and former chief
financial officer Bradley Hingle were knowingly concerned in Murray
Goulburn's conduct (28 April 2017).
More...
New stocking density for egg industry signed into
law
Egg farmers gain certainty for free range while Choice cries foul
over the new law. Any eggs labelled "free range" will
require a stocking density outdoors of 10,000 hens or fewer per
hectare. Consumer group Choice said it was disappointed with the
new standards and vowed to maintain its recommendation to
"boycott" densely stocked farmed eggs at the supermarkets
(27 April 2017).
More...
Telstra's compliance with Structural Separation
Undertaking improving
Telstra's compliance with its Structural Separation Undertaking
(SSU) has continued to improve reports the Australian Competition
and Consumer Commission in a report tabled in Parliament today. It
also requires Telstra to not use wholesale customer information or
migration processes to favour its own retail business during the
transition to the NBN (27 April 2017).
More...
Former ACCC Chairman: nothing to fear from
Amazon
Former ACCC Chairman, Graeme Samuel, has dismissed claims that
Amazon's entry into the Australian market would result in
higher prices for Australian consumers, noting the entry of major
international competitors into other markets in Australia has not
driven out local competition (26 April 2017).
More...
In practice and courts, published reports
ACCC Country of Origin Food Labelling
update
On 1 July 2016, the Country
of Origin Food Labelling Information Standard 2016
(Standard) commenced under the Australian Consumer Law. The
Standard introduces new labelling requirements for most food sold
in stores, markets, online and in vending machines. Businesses have
until 30 June 2018 to transition to the new labels.
The ACCC has produced
Country of origin food labelling guidance to assist businesses
with the new Standard. Businesses have until 30 June 2018 to
transition to the new labels.
The ACCC has also updated
guidance for businesses making country of origin claims under
the Australian Consumer Law. If a business is able to satisfy
certain criteria they will have an automatic defence against an
allegation that the claim is false, misleading or deceptive.
Imprisonment for Hard Core Cartel Participation: A
Sanction with Considerable Potential
Pascal Wirz, (2016) 28(2) Bond Law Review 89
To deter hard core cartel activity, the sanctions imposed on
cartelists must produce sufficient disutility to outweigh what the
cartelists expect to gain from cartel participation.
More...
Cases
Australian Competition and Consumer Commission v The Joystick
Company Pty Ltd [2017] FCA 397
TRADE PRACTICES – misleading and deceptive conduct –
false and misleading representations as to the health effects and
benefits of e-cigarette products – imposition of pecuniary
penalty – principles relevant to the imposition of a penalty
pursuant to s 224 of the Australian Consumer Law –
agreed penalty – consideration of whether agreed penalty is
within the permissible range of penalties – declarations
– compliance orders – injunctions – corrective
notices. Australian Consumer Law ss 18, 29, 29(1)(a),
29(1)(g), 33, 224, 224(1)(a)(ii), 224(1)(e), 224(2), 232(1)(e),
246. Competition and Consumer Act 2010 Schedule 2.
Australian Competition and Consumer Commission v Burden
[2017] FCA 399
TRADE PRACTICES – misleading and deceptive conduct –
false and misleading representations as to the health effects and
benefits of e-cigarette products – imposition of pecuniary
penalty – principles relevant to the imposition of a penalty
pursuant to s 224 of the Australian Consumer Law – agreed
penalty – consideration of whether agreed penalty is within
the permissible range of penalties – declarations –
compliance orders – injunctions – corrective
notices.
Australian Consumer Law Chapter 2, Chapter 3, Chapter 4, Part 3-1,
Part 5-2, ss 18, 29, 29(1)(a), 33, 224, 224(1)(a)(ii), 224(1)(e),
224(2), 224(3), 224(4)(b), 232, 232(1)(a), 232(1)(e), 232(4)(a),
246, 246(2)(b)(i) and (ii). Companies Act 1993 (NZ) ss
248(1)(c)(i), 250. Competition and Consumer Act 2010 (Cth)
Schedule 2, ss 5(1)(g), 131(1). Corporations Act 2001
(Cth).
From at least August 2015 to June 2016, the second respondent,
Elusion Australia Limited (NZBN 942 903 115 8060) (In Liquidation)
(Elusion), in trade or commerce:
(c) engaged in conduct that is liable to mislead the public as to
the nature or characteristics of goods, in contravention of s 33 of
the ACL, by representing to consumers on its website (Elusion
website) that the e-cigarette products supplied by it did not
contain harmful chemicals, cancer-causing chemicals or carcinogens,
when that was not the case.
Australian Competition and Consumer Commission v Social-Lites
Pty Ltd [2017] FCA 398
TRADE PRACTICES – misleading and deceptive conduct –
false and misleading representations as to the health effects and
benefits of e-cigarette products – imposition of pecuniary
penalty – principles relevant to the imposition of a penalty
pursuant to s 224 of the Australian Consumer Law – agreed
penalty – consideration of whether agreed penalty is within
the permissible range of penalties – declarations –
compliance orders – injunctions – corrective notices.
Australian Consumer Law Chapter 2, Chapter 3, Chapter 5, Part 2-1,
Part 5-2, ss 18, 29, 29(1)(a), 33, 224, 224(1)(a)(ii), 224(1)(e),
224(2), 224(3), 224(4)(b), 232, 232(1)(a), 232(4)(a), 232(1)(e),
233, 246, 246(2)(b), 246(2)(d), 247(2)(b). Competition and
Consumer Act 2010 (Cth) Schedule 2.
Cam & Bear Pty Ltd v McGoldrick [2016] NSWSC
1894
NEGLIGENCE – breach of duty by auditor – discussion of
duty of auditor to self-managed superannuation fund –
causation – breach of duty did not occasion loss –
action dismissed; TRADE PRACTICES – misleading or deceptive
conduct – audit certificate represents fair state of affairs
reported in financial statements – misleading and/or
deceptive – no loss occasioned by misrepresentation.
Bullhead Pty Ltd v Brickmakers Place & Ors [2017] VSC
206
TRUSTS AND TRUSTEES – Unit Trust – Interpretation of
Trust Deed – Breach of Trust Deed – Units improperly
issued in breach of Trust Deed and Unitholders Agreement – No
informed consent or agreement for issue of discounted units –
No basis to depart from strict terms of Trust Deed.
EQUITY – Breach of fiduciary duty – No power or basis
to issue units at a discount – Knowing receipt of trust
property.
EQUITY – Laches and acquiescence – Leave to amend
defence refused as defence will fail - Lack of clean hands –
Unconscionable for defendants to derive benefit from their own
wrongdoing.
AGREEMENT – Whether claims compromised by Finalisation
Agreement – Whether concluded agreement reached.
ESTOPPEL – Equitable estoppel – Representation as to
future conduct – Assumption induced by or arising out of
conduct – Defendant suffered detriment by relying on
assumption – Plaintiff estopped.
CIVIL PROCEDURE – Limitation periods – Limitation
of Actions Act 1958 (Vic), s 21(1)(a) – Issue of
discounted units fraudulent – Claims not statute
barred.
TRADE PRACTICES – Misleading or deceptive conduct –
Representation as to basis on which unitholders would hold units
– Meaning conveyed was misleading or deceptive –
Fair Trading Act 1999, s 9 (Vic).
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