In the media – National
Franchise fined $330,000 for misleading and deceiving
consumers
A real estate agency in Melbourne has been fined $330,000 in the
Federal Court after admitting to misleading and deceiving potential
buyers by underquoting on properties (06 October 2016).
More...
ACCC invites industry comment on complex, and vital
telecommunications issues
Mr Sims said it is time to re-examine the need for declaring a
domestic mobile roaming service. Mobile coverage and choice of
mobile service provider and competitively priced retail offers are
important issues for consumers living and working in regional areas
and the ACCC is well aware the mobile network operators have all
made significant investments in their mobile networks (04 October
2016).
More...
Woolworths petrol sale under ACCC
scrutiny
Rod Sims is getting set to take the microscope to an expected $1.6
billion deal by Woolworths to sell its petrol station network to an
existing player in what is already a fairly concentrated market (04
October 2016).
More...
Australia experiments with a "third way" on
resale price restrictions
Resale price maintenance (RPM) occurs when a manufacture or
distributor and a wholesaler prevents a retail or distributor from
selling below a specified price. A proposed new law in Australia
offers a different approach from other countries (03 October 2016).
More...
ASIC commences civil penalty proceedings against
Vocation Limited (in liquidation)
ASIC alleges that Vocation made representations in relation to its
securities that were misleading; that it failed to notify the ASX
of information that it was required to disclose; and that it
provided the ASX with a defective cleansing notice relied upon to
raise approximately $72.5 million from institutional and
sophisticated investors pursuant to a placement in September 2014
(30 September 2016).
More...
Credit card bankruptcies could be the next banking
scandal
Credit cards are rapidly becoming one of the most common causes of
personal bankruptcy, and there are indications that the major banks
have been granting inappropriate credit limits, possibly breaching
responsible lending laws (29 September 2016).
More...
Much to do to protect competition in the retail
sector
Australian Competition and Consumer Commission Chairman Rod Sims
said "Going forward, our main competition role in retail will
be to ensure new entrants are not prevented from competing on their
merits. We will, therefore, be alert to the consequences of large
firms acquiring promising start ups, we will closely monitor access
to data issues, and we will continue to support the proposed Harper
changes to section 46 (28 September 2016).
More...
ACCC to review online 'reviews'
The ACCC has joined an international initiative to ensure that
online product and service reviews and endorsements are fair and
accurate. The review is part of the annual internet sweep by the
International Consumer Protection and Enforcement Network (ICPEN),
involving over 50 consumer protection Agencies around the world (27
September 2016).
More...
In practice and courts, published reports
Government releases exposure draft of Harper competition
reform bill
The Government released an
exposure draft of the Harper reform bill on 5 September 2016.
See further at
Exposure Draft and
Explanatory Material.
Treasury is conducting a consultation on the Exposure Draft Bill
relating to the recommendations made by the
Harper Panel in 2015. The Exposure Draft bill was released on 5
September 2016 and consultation closed on 30 September 2016. The
Treasury website notes that the draft includes: ... amendments to
the misuse of power provision, as well as a significant number of
other important amendments to the CCA which were supported by the
Government.
More...
ACCC: issues paper for communications sector market
study
The paper calls for comment on a range of matters that may affect
competition, the efficient operation of markets, and investment
incentives over the next five years and beyond. Submissions are
invited until 14 October 2016. The issues paper and further
information on the market study is available at:
Communications sector market study.
More...
ACCC: New law on unfair contract terms to provide
protections for farmers and agriculture businesses
From 12 November 2016 a new law comes into place that will protect
farmers and small businesses from unfair contract terms. If a
farmer is concerned about the terms of a contract they have
received, they should visit the ACCC website or
contact the ACCC's Agriculture Unit for
information about the law.
More...
Cases
Commissioner for Consumer Protection v Unleash Solar Pty Ltd
(in liq) (No 2) [2016] FCA 1177
CONSUMER LAW – misleading and deceptive conduct –
non-supply of goods – non-supply of free item – where
application by State regulator under accrued jurisdiction –
whether second respondent 'involved' in contraventions of
the first respondent – declarations, injunction and civil
pecuniary penalties sought – relevant principles in the
assessment of civil pecuniary penalties under ss 29(1), 32(2) and
36(4) ACL (WA).
PRACTICE AND PROCEDURE – application for default judgment
– appropriate relief including assessment of pecuniary
penalties in default of appearance by the respondents – where
service abroad required. Australian Consumer Law (WA) ss 29(1),
32(2), 36(4), 224; Competition and Consumer Act 2010 (Cth)
Sch 2, ss 4, 18, 29(1)(g), 29(1)(m), 32(2), 36(4), 232.
Australian Securities and Investments Commission v Channic Pty
Ltd (No 4) [2016] FCA 1174
CONSUMER LAW – consideration of contended contraventions of
ss 113, 114, 115, 116, 117, 118, 121 and 123 of the National
Consumer Credit Protection Act 2009 (Cth).
CONSUMER LAW – consideration of contended contraventions of
ss 128, 129, 130, 131 and 133 of the National Consumer Credit
Protection Act 2009 (Cth).
CONSUMER LAW – consideration of contended contraventions of s
12CB of the Australian Securities and Investments Commission
Act 2001 (Cth).
CONSUMER LAW – consideration of contended contraventions of s
76 of the National Credit Code, Schedule 1 to the National
Consumer Credit Protection Act 2009 (Cth).
RinRim Pty Ltd v Deutsche Bank AG [2016] NSWSC
1377
BANKING AND FINANCE – where capital raising by Accelerated
Renounceable Entitlement Offer (AREO) underwritten by three
underwriters/joint lead managers – where contract between
underwriters and publicly listed company – whether
underwriters or publicly listed company owed obligations to
particular shareholders and/or investors in AREO process.
NEGLIGENCE – where novel claim for imposition of duty of care
– identification of particular class – salient features
to be considered – whether duty of care to be imposed –
if duty of care imposed success of claims dependent upon whether
evidence leads to a conclusion that plaintiff would have acted in a
particular manner. MISLEADING OR DECEPTIVE CONDUCT – where
plaintiff claims that defendants failure to provide it with notice
that it could make contact with the joint lead managers to ask to
be included in an aspect of the AREO led it to believe that it was
not qualified for inclusion – where outcome dependent upon
acceptance of plaintiff's witness evidence as to what it would
have done if given such notice.
Christie v Mastores[2016] WADC 137
Misleading or deceptive conduct - Silence or non-disclosure -
Expired prospectus – Section 725 Corporations Act –
Section 1325 Corporations Act - No jurisdiction to make orders
pursuant to s.1325 Corporations Act – Section 708(8)
Corporations Act - Sophisticated investor.
Legislation
Competition and Consumer Amendment (Competition Policy
Review) Bill 2016 [Exposure Draft]
This draft contains significant amendments to the Competition and
Consumer Act 2010 (the CCA). See the
Exposure Draft.
Competition and Consumer Amendment (Country of Origin) Bill
2016
Report due 10/10/2016 - The Bill amends the Australian Consumer Law
(ACL) (Schedule 2 of the Competition and Consumer Act
2010) to alter the definition of substantial transformation as
it applies to the safe harbour provisions of the ACL. This Bill
complements the Country of Origin Food Labelling Information
Standard 2016 (Information Standard) (made under the ACL)
which came into effect on 1 July 2016.
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.