In the media
ACCC action against Captain Cook College for alleged
systemic unconscionable conduct
The ACCC has instituted Federal Court proceedings against
Productivity Partners Pty Ltd, trading as Captain Cook College,
alleging systemic unconscionable conduct in breach of the
Australian Consumer Law, designed to maximise profit at the expense
of their students (09 November 2018).
More...
Australian regulator cancels license of AGM
Markets
The ASIC announced that it has cancelled the AFS licence
of the retail OTC derivative issuer AGM Markets. The cancellation
follows an ASIC investigation which demonstrated that AGM's
financial services operations involved core elements of
unconscionability and unmanaged conflicts of interest and followed
a business model that disregarded key conduct requirements (09
November 2018).
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Murray Goulburn: Gary Helou likely to face fines
following ACCC settlement
The ACCC will apply to the Federal Court seeking
declarations the Murray Goulburn and Mr Helou breached
Australian Consumer Law in 2016. MG's price cuts were
swiftly followed by other processors, including Fonterra, which
drove many farmers out of the sector, and saw Australia's milk
supply plummet (09 November 2018).
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Hearing aid retailers fined $2.5 million for misleading
pensioners
The Federal Court has ordered hearing aid retailers Oticon
Australia Pty Ltd (Oticon) and Sonic Innovations
Pty Ltd (Sonic) to pay penalties totalling $2.5
million for misleading pensioners through newspaper advertisements
for hearing aids sold by AudioClinic and HearingLife clinics (01
November 2018).
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Consumer watchdog dismisses Coalition calls to break up
fuel companies
The head of Australia's competition regulator has
shrugged off demands to lower fuel excise or break up petrol
companies, arguing that consumers shopping around for cheaper
petrol is the best response to high prices (31 October 2018).
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Grocery Code review calls for fairer dispute resolution
for suppliers
The Australian Government welcomes the release of
Professor Graeme Samuel AC's final report on the Review of the
Food and Grocery Code of Conduct (the Review). Key recommendations
include enhancing the provisions that require signatories to act in
good faith towards suppliers (30 October 2018).
More...
Consumers and small businesses win big with better
business reforms in NSW
The key reforms to empower consumers include making
businesses clearly tell consumers up front about the potential
effects of terms and conditions which could prejudice their
interests and making brokers and product comparison businesses come
clean on the kickbacks and commissions they receive (26 October
2018).
More...
Cases
Bank of Queensland Ltd v AIG Australia Ltd
[2018] NSWSC 1689
Loss for which defendant insurers are liable arises from
multiple "Claims".
BANKING AND FINANCE – banker and customer relationship
– money market deposit accounts – deposits recommended
by financial planner – financial planner alleged to have
engaged in Ponzi Scheme – monies in accounts misappropriated
– monies allegedly withdrawn without mandate – monies
allegedly withdrawn with knowledge of fraud.
INSURANCE – liability insurance – aggregation clause
– proper construction – how many "Claims"
made in representative proceedings – whether loss for which
insurers are liable arises from one "Claim" or multiple
"Claims" – unifying factor – how many
"Wrongful Acts" – whether there was a "series
of related" Wrongful Acts – whether the wrongful acts
"unrelated" – whether plaintiff's claim.
Clause 2.20 provided: 2.20 Wrongful Act means any (i) act or error
or breach of duty or omission or conduct (including misleading or
deceptive conduct ) committed or attempted or allegedly committed
or attempted by or of the Insured.
First Solar (Australia) Pty Ltd, in the matter of Lyon
Infrastructure Investments Pty Ltd v Lyon Infrastructure
Investments Pty Ltd [2018] FCA
1666
CORPORATIONS – whether pursuant to s 23 of the
Federal Court of Australia Act 1976 (Cth) the
proceeding against the second and third defendants should be stayed
pending determination of the arbitration between the plaintiff and
the first defendant – application allowed.
The commercial relationship between Lyon and First Solar embodied
in the Agreements was entered into on the basis that: (c) First
Solar would ensure that its solar panels were competitive in the
Australian renewable energy market, in terms of their price,
performance, and the terms on which they were supplied - alleged
misleading or deceptive conduct by First Solar pursuant to s 18 of
the Australian Consumer Law being Sch 2 to the Consumer and
Competition Act 2010 (Cth).
Ikon Communications Pty Ltd v Advangen International Pty
Ltd [2018] NSWSC
1650
CONTRACTS – Misleading conduct under statute –
Misleading or deceptive conduct – Predictions – Whether
the impugned representations were misleading or deceptive –
Remedies – Measure of damages – Cross-defendant's
onus to prove benefits to cross-claimant caused by
cross-defendant's unlawful conduct.
CONTRACTS – Breach of contract – Consequences of breach
– Right to damages – Whether the claimed damages were
expenditure incurred in the procurement or performance of the
contract.
EVIDENCE – Opinion evidence – Exceptions – Expert
opinion – Whether an opinion is wholly or substantially based
on a witness' specialised knowledge.
Australian Consumer Law; Therapeutic Goods Advertising Code
2015 (Cth)
Aurizon Network Pty Ltd v Queensland Competition Authority
& Ors [2018] QSC
246
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – SUPERVISION – OTHER
BODIES – where applicants submit that chair of first
respondent did not disclose alleged conflict of interest in
accordance with Queensland Competition Authority Act 1997
(Qld) s 219 – whether chair of first respondent had a direct
or indirect interest in an issue being considered by the authority
– whether contravention of s 219.
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.