In the media
Record $153 million in penalties ordered against
training college AIPE
The Federal Court has ordered $153 million in penalties
against Australian Institute of Professional Education Pty Ltd (in
liquidation) (AIPE). The Court had previously
declared that AIPE had engaged in a system of unconscionable
conduct, as well misleading or deceptive conduct, when enrolling
consumers into online diploma courses under the former VET FEE-HELP
loan program.
More...
Funeral industry practices raise consumer concerns
The ACCC is calling for funeral businesses to review their
contracts and pricing practices to ensure they comply with consumer
and competition laws, in
new report. The ACCC Deputy Chair said they are calling on the
funeral industry to do a thorough review of their systems, training
and marketing practices to ensure they don't mislead consumers
on pricing or other claims" (02 November 2021).
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IAG faces shareholder class action over BI
disclosure
Major Law firm plans to file a shareholder class action
against IAG for alleged breaches in updating the market about its
exposure to business interruption claims resulting from the
pandemic. AG policies relied on the outdated Quarantine Act as the
foundation for its pandemic exclusion clause. The class action will
allege breaches of stock exchange continuous disclosure obligations
and misleading and deceptive conduct (30 November 2021).
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Mazda misled consumers about their rights over refund or
replacement for faulty cars
The Federal Court has found that Mazda Australia Pty Ltd
engaged in misleading and deceptive conduct and made false or
misleading representations to nine consumers about their consumer
guarantee rights. The Court found that Mazda misled these consumers
about their consumer guarantee rights by representing that they
were only entitled to have their vehicles repaired (30 November
2021).
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Suppliers of CAMI and iTutor home tutoring software
admit to using unfair contract terms
Education software supplier Compass Matin Pty Ltd and its
contract manager EduCollect Pty Ltd have admitted to using unfair
contract terms in the supply of their CAMI and iTutor home tutoring
programs. Compass Matin has also admitted that it made false or
misleading representations to consumers about free tutoring
lessons, in breach of the Australian Consumer Law (30 November
2021).
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Profit over patient safety': Health regulator
launches review into cosmetic surgery industry
The national medical regulator has announced a sweeping
review of the multibillion-dollar cosmetic surgery industry,
acknowledging that a profit-driven culture had led to dangerous
practices that sparked widespread concerns about patient safety (30
November 2021).
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La Trobe Financial Asset Management to pay $750,000
penalty for false and misleading marketing
The Federal Court has ordered La Trobe Financial Asset
Management to pay a $750,000 penalty for false and misleading
marketing of the La Trobe Australian Credit Fund (29 November
2021).
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Employsure to pay a penalty of $1 million for misleading
Google Ads
The ACCC submitted that a penalty of $5 million was
appropriate in order to send a strong deterrence message and given
publication of the Google Ads over a prolonged period. The Court
imposed a penalty of $1 million based on Justice Griffiths'
earlier finding that the conduct was not deliberate and did not
consider that an injunction was appropriate (29 November 2021).
More...
Beach Energy taken to the Federal Court by
shareholders
Slater and Gordon has launched a class action against
Adelaide-based oil and gas company Beach Energy on behalf of
investors who incurred losses following a decline in the
company's share price. The class action alleges the energy
company engaged in misleading or deceptive conduct and breached its
continuous disclosure obligations under the Corporations Act (26
November 2021).
More...
ACCC completes investigation into Holden's conduct
towards dealers
The ACCC has decided not to pursue these concerns, in
large part because any ACCC action may prejudice the private
actions taken by dealers. ACCC is still assessing whether
Holden's car servicing arrangements, including Holden's
decision to end its 'lifetime' capped price servicing
program, raise any issues under the ACL (26 November 2021).
More...
Techtronic in court for alleged resale price maintenance
over power tools
The ACCC alleges that, between 2015 and 2021, Techtronic
engaged in RPM conduct, including by entering into 96 agreements
with independent dealers and buying groups which restricted the
sale of Milwaukee brand power tools below a specified minimum
price, and Techtronic withheld supply from two of the dealers to
enforce the restrictions on price discounting below the specified
minimum price (25 November 2021).
More...
Vaping advertisers and importers hit with $170,000 in
fines by TGA
Since new laws commenced, websites have emerged offering
to link vapers to a health practitioner authorised to prescribe the
products. But the new laws only allow pharmacies and
pharmacy-marketing groups to advertise in a very limited way. The
TGA reminds advertisers of the recent warning not to engage in
deceptive conduct. (22 November 2021).
More...
Cases
Australian Competition and Consumer Commission v Mazda
Australia Pty Ltd [2021] FCA
1493
CONSUMER LAW – prohibition on misleading or
deceptive conduct under s 18 of the Australian Consumer Law (ACL)
– prohibition on certain false or misleading representations
under s 29(1)(m) of the ACL – statutory guarantee as to
acceptable quality under s 54 of the ACL – consumer's
entitlement to reject goods under s 259 of the ACL –
representations made as to consumer rights under statutory
guarantee provisions of the ACL – representations made as to
supplier's right to repair goods regardless of consumer's
entitlement to reject goods – representations made in the
nature of opinions – whether reasonable basis existed for
making representations in the nature of opinions – where
supplier gave no consideration to consumers' entitlements to a
refund or replacement under the ACL – whether misleading or
deceptive
CONSUMER LAW – prohibition on unconscionable conduct under s
21 of the ACL – where no allegation of "system" or
"pattern" of conduct – whether respondent's
conduct unconscionable
Competition and Consumer Act 2010 (Cth) Schedule 2 ss 3, 7, 18,
18(1), 21, 22, 29(1), 29(1)(m), 54, 54(2)(c), 259, 259(2),
259(2)(b), 259(3), 259(3)(a), 260, 260(1)(a), 260(1)(c), 260(1)(e),
262, 262(1), 262(2), 263, 263(4), 263(4)(a), 263(4)(b), 263(6),
Parts 3-2, Part 5-4, Part 5-4 Div 1
Australian Competition and Consumer Commission v Employsure
Pty Ltd (No 2) [2021] FCA
1488
CONSUMER LAW – pecuniary penalties –
contraventions of ss 29(1)(b) and 29(1)(h) of the Australian
Consumer Law – six Google advertisements conveyed misleading
or deceptive government affiliation representation –
determination of appropriate penalty – consideration of
course of conduct principle – pecuniary penalty of $1 million
imposed
CONSUMER LAW – application for injunctive relief –
where contravening conduct inadvertent and unlikely to recur
Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer
Law) ss 18(1), 29(1)(b), 29(1)(h), 224, 232
Creative Property Holdings Pty Ltd (Trustee) v Car Parks
Super Pty Ltd (Trustee) [2021] FCA
1478
CONTRACTS – claim for specific performance of a
contract for the sale of land – whether binding contract for
the sale of land – whether parties intended to be bound only
upon the exchange of counterparts – Eccles v Bryant and
Pollock [1948] 1 Ch 93 considered and applied
CONSUMER LAW – whether by making of offer to sell land
respondent engaged in conduct that was misleading and deceptive in
breach of s 18 of the Australian Consumer Law
Competition and Consumer Act 2010 (Cth) Schedule 2 s 18
Australian Securities and Investments Commission v La Trobe
Financial Asset Management Ltd [2021] FCA
1417
CONSUMER LAW – misleading conduct – admitted
contraventions of ss 12DA(1) and 12DB(1) of the Australian
Securities and Investments Commission Act 2001 (Cth) and s 1041H(1)
of the Corporations Act 2010 (Cth) – pecuniary penalties
sought by plaintiff not opposed by defendant – whether
quantum of penalty appropriate – whether form of declarations
appropriate
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