This note examines current issues in the application of competition law to non-horizontal mergers, with particular reference to the recent decision of the Federal Court in the Pacific National case, and the arguments raised in the appeal to the Full Court.
Category: Competition and Consumer Law
For ACL buffs, Treasury’s current Consultation Regulation Impact Statement is a doozy. Reading between the lines, it seems to suggest that unfair contract terms may soon be outlawed once and for all.
Allsop CJ has given helpful tips to practitioners tasked with the job of drafting a concise statement in a banking case concerning statutory claims having an equitable character.
The High Court recently split on the test for statutory unconscionability, as well as deeper questions about whether vulnerable consumers can (or should be allowed to) consent to exploitative arrangements and how mainstream Australian culture interacts with indigenous cultures and norms.
Contractual time bars and claims for damages for misleading or deceptive conduct under s 236 of the ACL
A contractual provision which had the effect of excluding liability for damages for misleading or deceptive conduct under s 236 of the Australian Consumer Law if the complainant failed to give a notice of the proposed claim within a prescribed time limit was found to be unenforceable. Such a provision was also found to be ineffective in a “no transaction” case.
Just before Christmas last year Wigney J dismissed a cartel case in which the ACCC alleged that Cussons (and the other major laundry detergent manufacturers) had colluded when they simultaneously transitioned all their detergent products from a standard formula to an ‘ultra-concentrated’ formula (with concomitant repackaging and re-pricing). The case is on appeal.
The Federal Court found that the manufacturer of Nurofen had breached the Australian Consumer Law in a decision that emphasises the importance of an adequate scientific basis when engaging in comparative advertising of a scientific nature.
On 25 July 2017, the Federal Court ordered an egg supplier to pay a pecuniary penalty of $750,000 for falsely advertising eggs as “free range” and for engaging in misleading or deceptive conduct in so doing.
The Federal Court found that three online retailers and their directors had engaged in “serious” contraventions of the Australian Consumer Law for misleading Australian consumers as to the health benefits of e-cigarettes in three separate decisions that emphasise the importance of cooperation as a mitigating factor.
Australian Competition and Consumer Commission v The Joystick Company Pty Ltd, Australian Competition and Consumer Commission v Social-Lites Pty Ltd, and Australian Competition and Consumer Commission v Burden  FCA 397,  FCA 398, and  FCA 399
The Federal Court ordered an American video game giant to pay a $3 million penalty for misleading Australian consumers in a decision that sends a strong message to overseas traders to comply with the Australian Consumer Law.
The Commonwealth parliament is in the process of passing a law in relation to concerted practices, largely following the Harper Review recommendations on that topic. Was that wise?
Edelman J’s decision in ACCC v Chrisco Hampers  FCA 1204 provides guidance on how courts will approach the unfair contract term provsions of the ACL.
“Bad call”: Non-disclosure by franchisor of franchisee wage costs
In ACCC v RL Adams, Justice Edelman warned future defendants of an increase in the quantum of penalties that may be ordered for misleading or deceptive conduct in ‘free range’ claims. Defendants may face multiple contraventions and be subject to far greater fines to stem the tide of false ‘free range’ advertising.