In the media
Commonwealth to introduce Misuse of Market Power
"Effects Test"
The Competition and Consumer Amendment (Misuse of Market
Power) Act 2017 (Cth) (the Act) was assented
to on 23 August 2017. The Act introduces a so-called "effects
test" into section 46 of the Competition and Consumer Act
2010 (Cth), which was recommended by the Harper review into
Australia's competition framework. The Act will commence at the
same time as Schedule 1 to the Competition and Consumer
Amendment (Competition Policy Review) Act, which is currently
still at bill stage and is being considered in Parliament. If the
Bill does not pass, the provisions in the Act will not commence (24
August 2017). More...
Competition regulator's economy-wide
focus
Speaking at a Committee for Economic Development
(CEDA) WA event, Mr Sims discussed the ACCC's
inquiry into the financial sector, the energy affordability crisis
facing Australia's east coast, the "game changing"
approach to broadband advertising he hopes will reform the telco
industry; the changes needed to help new car buyers exercise their
rights, the agency's focus on cartel activity; and the need for
appropriate regulation before privatising monopoly assets (24
August 2017).
More...
More....
ACCC issues SOI on proposed acquisition of
OfficeMax
The ACCC has issued a Statement of Issues in relation to Platinum
Equity's proposed acquisition of OfficeMax Australia. It has
indicated its 'primary concern is that the loss of competition
between Staples and OfficeMax could result in higher prices and
lower levels of service'. Interested parties have until 7
September to make submissions; a final decision is expected on 16
November 2017 (24 August 2017).
(ACCC media release) More...
(merger register) More...
BlueScope is being investigated, its CEO has resigned
and shares are down 20%
The company also announced that it was the subject of a regulatory
investigation. BlueScope's contingent liabilities note in its
2017 financial statements: "Over the last financial year, the
Australian Competition and Consumer Commission
(ACCC) has been investigating potential cartel
conduct by BlueScope relating to the supply of steel products in
Australia, that involved a small number of BlueScope employees in
the period from late 2013 to mid-2014. BlueScope has co-operated,
and continues to co-operate, with the ACCC's
investigation." (21 August 2017).
More...
ACCC v We Buy Houses Pty Ltd [2017] FCA 915:
Company Director Found Guilty of making False or Misleading
Representations
In the recent case of ACCC v We Buy Houses Pty Ltd [2017]
FCA 915 (11 August 2017), the Federal Court has found that We Buy
Houses Pty Ltd and its sole director, Mr Otton, made false or
misleading representations in promoting a number of wealth creation
strategies involving real estate (18 August 2017). More...
Strengthened competition law to benefit Aussie small
businesses and consumers
The Turnbull Government has legislated significant amendments to
strengthen Australia's competition law providing greater
protections for small businesses and more choice for consumers by
boosting innovation and opening new markets. The amendments
implement a key recommendation of the Harper Competition Policy
Review to strengthen section 46 of the Competition and
Consumer Act 2010, also known as the misuse of market power
provision. The Harper Review found the misuse of market power law
was not reliably enforceable and did not effectively target and
deter anti-competitive conduct (15 August 2017).
More...
Boosting competition in banking
The Turnbull Government welcomes the Australian Prudential
Regulation Authority's (APRA) release today of
the discussion paper on a phased approach to licensing new entrants
to the banking industry. As announced at the 2017 Budget, the
Government supports the implementation of a phased APRA licensing
system to encourage new and innovative providers (15 August 2017).
More...
ACCC takes action to enforce $50,000
penalty
The ACCC has commenced proceedings in the Federal Court against Mr
Tuan Nguyen to enforce payment of a $50,000 penalty previously
ordered for breaches of consumer law. In 2013, the Court found that
Mr Nguyen was knowingly concerned in false or misleading
representations made by Artorios Ink to five small businesses to
sell printer cartridges. The Court ordered Mr Nguyen to pay a
penalty of $50,000 but he made no payments and filed for bankruptcy
(14 August 2017).
More...
In practice and courts, published reports
Independent review into the electricity and gas retail
markets in Victoria: final report
John Thwaites, Patricia Faulkner, Terry Mulder; Department of
Environment, Land, Water and Planning (Vic): 13 August
2017
When competition was introduced into Victoria's retail energy
market in 2002, it was anticipated to generate consumer benefits
through lower costs of supply and innovative product development.
It was expected that low barriers to entry would attract new
competitors and reduce the commercial.
More....
Broadband speed claims: industry guidance
Australian Competition and Consumer Commission: 21 August
2017
The ACCC is providing more detailed guidance concerning how to
implement its principles for advertising the speeds of retail
fixed-line broadband plans. This guide has been prepared in
consultation with network operators, retail service providers
(RSPs) and consumer representatives.
More...
Australia's dairy industry: rebuilding trust and a
fair market for farmers
Senate Economics References Committee: 17 August
2017
On 14 September 2016, the Senate referred an inquiry into the
Australian dairy industry to the Senate Economics References
Committee for report by 24 February 2017, in order to establish a
fair, long-term solution to Australia's dairy crisis, with
particular reference to fresh milk security, the legality of
retrospective elements of milk contracts; the behaviour of Murray
Goulburn; and any other related matters.
More...
Cases
Australian Competition and Consumer Commission v We Buy Houses Pty
Ltd [2017]
FCA 915
CONSUMER LAW – misleading or deceptive conduct –
alleged breaches of ss 18, 29(1)(e), (f) and (g), 34 and 37 of the
Australian Consumer Law – where alleged that the respondents
represented that the respondents could teach consumers how to buy a
house for $1, and/or without a deposit or a bank loan, and/or with
little or none of the consumer's money, and/or generate income
and profit by dealing with property in various ways – alleged
representation that first respondent had been successful in real
estate by using the advertised methods – where
representations made in a book, on several websites, at free
seminars and in various training courses – whether alleged
representations were made out – whether mere puffery –
whether representations as to future matters – application of
s 4 of the Australian Consumer Law – whether there were
reasonable grounds for making of the representations –
whether first respondent was directly or indirectly, knowingly
concerned in, or party to, contraventions of the Australian
Consumer Law by the second respondent – contraventions found.
PRACTICE AND PROCEDURE – leave sought to rely on amended
version of statement of claim served during trial – leave
refused.
Dargan Financial Pty Ltd ATF the Dargan Financial Discretionary
Trust (trading under Home Loan Experts) v Nassif Isaac [2017]
NSWSC 1077
CONTRACTS — general contractual principles —
construction and interpretation of contracts.
EQUITY — Breach of confidence — Necessary quality of
confidence — Material in public domain.
TRADE AND COMMERCE — restraints of trade —
reasonableness of restraint — cartel provisions.
A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Australian Securities and Investments Commission Act 2001 (Cth);
Competition and Consumer Act 2010 (Cth).
Chandra Hasan Yuvarajah v Mercedes-Benz AustraliaPacific Pty
Ltd (Civil
Claims) [2017] VCAT 1296
Motor vehicle; Australian Consumer Law s54 acceptable quality; s55
fitness for purpose; s59 express warranties; s260 major failure;
s278 linked credit provider. The applicant adduced no evidence in
respect of any representation or any misleading or deceptive
conduct by the first respondent about the car. Findings: the
applicant has not established that the first respondent contravened
section 18 of the ACL by engaging in misleading and deceptive
conduct.
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