In the media
ACCC takes action against Thermomix
The ACCC alleges that Thermomix misled customers about their
consumer guarantee rights, failed to comply with mandatory
reporting requirements for injuries arising from the use of the
appliances, made false representations and engaged in misleading
conduct regarding the safety of the TM31 model, and made false and
misleading statements about its 2014 recall (16 June 2017).
More...
High Court unanimously dismisses air cargo
appeals
The High Court today unanimously dismissed the appeals from Air New
Zealand and PT Garuda Indonesia Ltd. The principal issue on appeal
was whether there was a market "in Australia" for the air
cargo services for which the airlines competed for the purposes of
the Trade Practices Act 1974 (Cth). The
High Court's judgment summary states that: 'The
plurality held that a market, within the meaning of the TPA, was a
notional facility which accommodated rivalrous behaviour involving
sellers and buyers, and that it was the substitutability of
services as the driver of the rivalry between competitors to which
s 4E looked to identify a market, rather than the circumstances of
the act of substitution or the "switching decision"
itself. View judgment.
See High
Court case page
(14 June 2017).
More...
Petrol prices in Brisbane higher than
Sydney
Brisbane residents are paying more for fuel than people in Sydney,
Perth, Adelaide and Melbourne — and the RACQ says there is no
good reason for it. The ACCC is examining these high retail prices,
margins and profits in Brisbane and will release its findings in a
separate short, dedicated report, which it intends to release in
late-July," an ACCC statement said (09 June 2017).
More...
Labor flags plan to crack down on non-compete clauses
for employees
Andrew Leigh, the shadow assistant treasurer, says Australia is
experiencing a rise in companies using their market power for
anti-competitive reasons, with complaints to the competition
watchdog, of misleading and deceptive conduct, up one third over
the last three years. He also raises concerns about the growing
number of non-compete clauses in employment contracts which prevent
employees from working for a competitor, starting a competing firm,
or poaching customers from old employers (07 June 2017).
More... See Shadow Assistant Treasurer, Andrew Leigh MP's,
speech at Murdoch University entitled 'A Few Big Firms', is
now available online.
More...
Lumo Energy pays penalty for alleged energy offer
misrepresentations
Energy retailer Lumo Energy Australia Pty Ltd
(Lumo) has paid a penalty of $10,800. The ACCC
issued the infringement notice because it had reasonable grounds to
believe that Lumo had contravened the Australian Consumer Law by
making a false or misleading representation about energy discounts
(06 June 2017).
More...
Cartels caught ripping off Australian consumers should
be hit with bigger fines
The ACCC is going after larger fines from companies for cartel
conduct that costs the Australian consumer. The difficulty is
bringing Australian penalties into line with international
standards, to be great enough to deter this kind of activity, often
perpetrated by companies overseas. The significance of this latest
push by the regulator has been highlighted by a recent case where
the Federal Court fined a Japanese manufacturer, Yazaki, A$9.5
million for a cartel involving car parts (02 June 2017).
More...
In practice and courts, published reports
Electricity supply & prices inquiry
update
On 31 May 2017 the ACCC released an issues paper concerning its
inquiry into the retail supply of electricity and the
competitiveness of retail electricity markets in the National
Electricity Market (Inquiry). Submissions are due
by 30 June 2017. A preliminary report is now due to the Treasurer
by 27 September 2017 and a final report by 30 June 2018.
More...
National Electricity Market Energy Review - final report
released
Dr Alan Finkel presented the Final Report of the Review to the
Council of Australian Governments (COAG)
Leaders' meeting on 9 June 2017. See specific details of the
report here.
More...
Normative justifications for cartel criminalisation in
the UK
Andreas Stephan's new paper examining the normative
justifications for cartel criminalisation is highly relevant to
Australian competition law enforcement. Australia has criminalised
cartels since 2009 but has yet to charge any individuals for cartel
conduct.
More...
Cases
Air
New Zealand Ltd v Australian Competition and Consumer Commission;
PT Garuda Indonesia Ltd v Australian Competition and Consumer
Commission [2017] HCA 21
Appeal dismissed with costs. Trade practices – Restrictive
trade practices – Price fixing – Market identification
– Location of market – Meaning of market "in
Australia" – Where airlines competed to supply
unidirectional air cargo services from ports of origin outside
Australia to destination ports within Australia – Where
airlines arrived at understanding to impose various surcharges and
fees for supply of air cargo services – Whether market for
air cargo services "in Australia" for purposes of
Trade Practices Act 1974 (Cth). Trade practices –
Restrictive trade practices – Price fixing – Foreign
state compulsion – Where airlines contravened s 45 of
Trade Practices Act 1974 (Cth) – Whether conduct
compelled by foreign law or foreign regulator's administrative
practices.
Statutory interpretation – Inconsistency – Where s
13(b) of Air Navigation Act 1920 (Cth) required airlines
to comply with "agreement or arrangement" – Where
Australia-Indonesia Air Services Agreement "agreement or
arrangement" within meaning of ss 12(2) and 13(b) of Air
Navigation Act – Where Australia-Indonesia Air Services
Agreement required agreement between international airlines on
minimum tariffs – Where ss 45 and 45A of Trade Practices
Act 1974 (Cth) prohibited arriving at understandings
concerning prices with competitors – Whether ss 12 and 13 of
Air Navigation Act inconsistent with ss 45 and 45A of Trade
Practices Act such that latter did not apply to contravening
conduct. Words and phrases – "competition",
"foreign state compulsion", "market
identification", "market in Australia",
"otherwise competitive with", "practically and
operatively inconsistent", " price fixing ",
"rivalrous behaviour", "substitutability",
"supply and demand".
Hi-Rise Access Pty Ltd v Standards Australia Limited [2017]
FCA 604
CONSUMER LAW – Misleading or deceptive conduct
–knowledge to be imputed to the target audience –
whether the impugned statements conveyed the representations
alleged – whether representations of fact or opinion –
whether representations "in trade or commerce" –
principles relevant to conduct "in trade or commerce"
– whether activities of peak Australian Standards body in
developing, publishing and promoting Australian Standards is
"in trade or commerce"– conclusion that the
relevant activities are not "in trade or commerce" -
Competition and Consumer Act 2010 (Cth); Sch 2,
Australian Consumer Law; Trade Practices Act 1974
(Cth).
AAP Engineering Pty Ltd v Fernlog Pty Ltd [2017] NSWDC
141
Commercial lease – alleged breach by lessee - applicable
principles of construction – restitutionary claim –
conventional estoppel – whether electricity and water usage
"separately metered" within lease - Australian Consumer
Law. Under this Cross-Claim the defendant/cross-claimant claims
that it is entitled to: (a) The repayment of moneys which it paid
to the plaintiff as a contribution towards electricity bills on the
basis of misleading or deceptive conduct in breach of Section 18 of
the Australian Consumer Law by the plaintiff to the effect that the
proper utility Authorities had issued charges for electricity
services connected to the Premises the subject of the Lease, and
that the Premises the subject of the Lease were separately metered.
The amount claimed is $110,000.
SW Investments NSW Pty Ltd v 16 Boondilla Pty Ltd [2017]
NSWSC 762
CONSUMER LAW – misleading or deceptive conduct
–agreements executed for purchase of share of property–
money paid towards purchase – inaccurate and incomplete
explanation of transaction given by defendant to plaintiff –
failure to disclose true nature of transaction – where
plaintiff had poor command of English and relied on defendant's
explanation of documents – agreements declared void –
orders made requiring defendants to compensate plaintiff for
loss.
Fairbank's Selected Seed Co Pty Ltd v Amar Produce Pty Ltd
[2017] VSCA 139
TRADE PRACTICES – Misleading or deceptive conduct –
Sale of goods – Representations –Reliance – Oral
representations as to suitability of seeds – Whether
representations made – Whether relied on – Findings of
fact – No error – Appeal dismissed – Trade
Practices Act 1974 (Cth) ss 52, 53(c).
Boogs v Missen (Civil Claims) [2017] VCAT
835
Private sale of a horse – transaction not occurring "in
trade or commerce" – horse not "goods which it is
in the course of the seller's business to supply" –
significant misrepresentations made by the seller which induced the
purchaser to enter the transaction to her detriment –
consumer guarantee under s 54 of the Australian Consumer Law
inapplicable – no implied warranty under s19 of the Goods Act
1958 – Australian Consumer Law and Fair Trading Act
2012 sections 184(1), 184(2)(b)(ii), 184(2)(d), 184(2)(e),
184(2)(g) – negligence in a consumer and trader dispute
– restitution – refund – rescission.
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