Inside track: Competition & Consumer Law – In the media, practice and regulation and cases – Consumer Protection | #tinder | #pof

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In the media

Older men charged more for using Tinder’s premium
service, Choice mystery shoppers find
An investigation by consumer group Choice has found dating
app Tinder is charging some Australians far more than others for
access to its premium service Tinder Plus. Choice alleges
Tinder’s terms of use are not sufficiently transparent, because
Tinder users are not told their personal data may be used to set
pricing (12 August 2020).

ACCC says bank screen scraping warnings are not
The ACCC has said warnings to consumers from banks over
the use of screen scraping are not designed to lower competition in
the local market, and are general security warnings. The commission
added it currently has six investigations looking into
anti-competitive conduct in the finance sector, as well as working
on a market study, and introducing the Consumer Data Right (10
August 2020).

ACCC sides with banks in screen scraping warning
Australia’s competition watchdog has sided with the
major banks over accusations that warning customers against using
third-party fintech apps and other services that employ screen
scraping constitutes an abuse of market power (10 August 2020) .

ACCC commences review of chicken meat industry in
The ACCC has commenced a self-initiated review of the
chicken meat industry in Australia. The review will run to December
2020 and will focus on the commercial relationships between growers
and processors. This review is akin to our recent work in assessing
potential harms to competition in the agricultural machinery sector
(07 August 2020).

West Gate Tunnel fight sent to arbitration
CPB and John Holland builders accused Transurban of
engaging in misleading or deceptive conduct over the extent of
contaminated soil at the site before the deal was signed. Justice
Kevin Lyons on Friday ruled a tribunal and not the Supreme Court
was best placed to sort out the dispute between the company and its
builders (07 August 2020).

Ad claims found unsubstantiated
AFT Pharmaceuticals has again suffered disappointment in
the Federal Court over advertising for Maxigesic, which was found
to be misleading. AFT was seeking to re-open the matter after the
final judgement had been given, but before it was published, saying
the Court had misapprehended its case (07 August 2020). More…

Two companies fined $25,200 for alleged unlawful
importation and advertising of infrared thermometers in relation to
The TGA has issued two infringement notices, each for
$12,600, to Melbourne-based companies for allegedly importing
non-contact infrared thermometers and advertising on the VeraTemp
Pty Ltd website for non-contact infrared thermometers falsely
suggested that the thermometers had been approved by the TGA (06
August 2020).

The ACCC says influencers must disclose when they post
sponsored content – but admits it has never penalised anyone
for breaking the rules
No Australian influence has ever been sanctioned or faced
a penalty from the ACCC for not marking their posts as sponsored.
As the influencer industry has become more professional, industry
groups have increasingly encouraged advertising disclosure (06
August 2020).
Note: in July 2020, the Australian Influencer Marketing
Council published its first ever
first ever code of practice for influencers

which outlines best practice for creators,
including how to disclose advertising on different types of

Crossing the Creepy Line: Google, Deception and the
The ACCC is yet another regulatory body that has thrown
itself into the fray, taking its second case against Google to the
Australian Federal Court. Central to this action is the claim that
will come as little surprise to watchers of the Silicon Valley
scene: the instance of “deception by design.” (05 August

Sumo Power allegedly misled consumers about electricity
The ACCC has instituted proceedings in the Federal Court
against Sumo Power Pty Ltd (Sumo) alleging it made false or
misleading representations to Victorian consumers in relation to
its electricity plans. ACCC claims Sumo subsequently misled
consumers when advising them that the price increases were due to
wholesale energy cost factors including generation cost rises and
“climate change and ageing assets forcing the closure of cheap
coal fired power stations” (05 August 2020).

Practice and regulation

ACCC Consultation: draft news media bargaining
The ACCC has released its draft mandatory media bargaining
code for consultation. The code seeks to address the fundamental
bargaining power imbalance between Australian news media businesses
and major digital platforms. Consultation on the draft code will
now take place until 28 August 2020. See
for more details.

Consumer Safeguards Review Part C: Choice and fairness -
consultation paper
Department of Infrastructure, Transport, Regional
Development and Communications (Australia)

Government of Australia: 27 July 2020

The Consumer Safeguards Review is examining what consumer
safeguards are required for a changing communications environment,
with a focus on the post-2020 environment. This consultation paper
seeks the public’s views on proposals for reform regarding
choice and fairness in the retail relationship between customers.

ACCC Note: Screen scraping warnings not
The ACCC, responding to questions on notice as part of a
parliamentary inquiry by the
Senate Select Committee on Financial Technology and Regulatory
, said that “statements or warnings regarding
potential security or safety risks associated with screen scraping
and sharing password does not appear to have the purpose or effect
of substantially lessening competition.”

Consultation Reminder: Country of origin food
The evaluation of country origin labelling for food will
consider if the labels are helping consumers make more informed
choices, as well as clarifying the origin claims that businesses
can make, while avoiding excessive costs for businesses which will
be passed onto shoppers. A discussion paper and an opportunity to
provide views is available at
until 11 September. More information on
country of origin labelling is available at

ACCC Consultations

Consumer Data Right – Energy rules framework consultation – closes
28 August

Guidelines on Part XICA – Prohibited conduct in the
energy market
These guidelines set out how the ACCC will interpret Part
XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they
explain the general approach the ACCC will take in investigating
alleged contraventions of Part XICA (prohibiting certain conduct
involving retail pricing, financial contract markets and
electricity spot markets) Part XICA will be in effect from 10 June
2020 to 1 January 2026.


Berry v CCL Secure Pty Ltd
[2020] HCA

Appeal allowed. Damages – Misleading or deceptive
conduct – Where first appellant induced to give up agreement
by respondent’s misleading or deceptive conduct in
contravention of s 52 of Trade Practices Act 1974 (Cth) –
Where appellants sought damages pursuant to s 82 of Trade Practices
Act referable to amounts payable had agreement not been terminated
– Whether respondent entitled to contend that but for its
misleading or deceptive conduct it would have lawfully terminated
agreement – Whether presumption against wrongdoers applied
– Whether evidence established real (not negligible)
possibility that respondent would have terminated agreement by
lawful means. Words and phrases – “balance of
probabilities”, “counterfactual lawful termination”,
“deliberate contravention”, “evidential
burden”, “lawful means alternative”, “legal
burden”, ” misleading or deceptive conduct “,
“notice of termination”, “presumption against
wrongdoers”, “real (not negligible) possibility”,
“recovery of damages for lost commercial opportunities”,
“reversal of onus of proof”. Trade Practices Act 1974
(Cth), ss 52, 82.

RSA Express Pty Ltd v Guilfoyle

[2020] FCA 1157

CONSTITUTIONAL LAW – consideration of an application
to dismiss paragraphs of an amended Statement of Claim which seek
to plead relief based upon facts said to give rise to a claim of
invalidity arising by operation of s 109 of the Constitution
– consideration of a claim said to arise under s 117 of the
Constitution – consideration of a claim said to arise under s
46(1)(a) of the Competition and Consumer Act 2010 (Cth)

The applicant pleads that the conduct of the WHS regulator in
making the two amendments to the September 2017 agreement on behalf
of the State was the expression of the exercise of the WHS
regulator’s substantial power in six pleaded markets which
“has lessened or will substantially lessen competition “
in each market in the way pleaded

Competition and Consumer Act 2010 (Cth), ss 2B, 46(1)(a), 80,

Competition Policy Reform (Queensland) Act 1996 (Qld), ss 3-6, 8,
10, 13, 14

Sandoz Pty Ltd v H. Lundbeck A/S

[2020] FCAFC 133

CONTRACTS – proper construction of settlement
agreement compromising patent proceedings – effect of clause
granting appellant licence to exploit patent prior to its expiry
– where clause specified possible commencement dates but no
end date – whether licence continued to apply in relation to
acts occurring after expiry of term of the patent and before the
term was subsequently extended – consideration of surrounding
circumstances known to the three parties to settlement agreement
and commercial purpose or objects of transaction – whether on
appellant’s construction the settlement agreement produced a
commercially nonsensical result – whether settlement
agreement provided appellant with a defence to infringement

PATENTS – s 223(10) of the Act –PATENTS – s 79 of
the Patents Act 1990 – PATENTS – s 79 of the Act

COURT ORDERS THAT: The appeal be allowed. The cross-appeal be


THE COURT: Her Honour also made a declaration that Sandoz had
engaged in conduct that was misleading or deceptive or likely to
mislead or deceive. The primary judge also ordered Sandoz to pay
damages to Lundbeck in the amount of $16,219,000 plus interest and
to the second respondent (“Lundbeck Australia”) in the
amount of $1,369,000 plus interest.

Jornad Pty Ltd v Sapme Pty Ltd (No. 2)

[2020] ACTSC 201

Judgment for plaintiff CONSUMER LAW – MISLEADING OR
DECEPTIVE CONDUCT – Sale of business – claim against
vendor pursuant to s 18 of Sch 2 of the Competition and Consumer
Act 2010 (Cth) – whether vendor made misrepresentations as to
turnover, profitability and the payment of rent – whether
purchaser relied on vendor’s statements – where business
failed – whether purchaser contributed to the failure of the
business. Competition and Consumer Act 2010 (Cth) – s 137B,
Sch 2 (ss 18, 236, 237)

One Pro Baulkham Hills Pty Ltd v Ming Tian Real Property
Pty Ltd
[2020] NSWSC

Proceedings dismissed with costs

CONTRACTS – building contract – construction –
conditions precedent – whether conditions precedent were to
formation of contract or parties’ performance of their
obligations under the contract – whether defendant contractor
obliged to commence work under contract – whether failure by
defendant to provide bank guarantees and evidence of home warranty
insurance caused plaintiff to suffer damage

CONTRACTS – ambit of exclusion clause – whether
exclusion clause survived consensual termination of contract

CONTRACTS – remedies – damages – whether
plaintiff principal proved it had suffered damage by reason of
defendant’s conduct

CONSUMER LAW – misleading or deceptive conduct – where
director of defendant represented guarantee was genuine –
where bank guarantee was not genuine – where plaintiff
general manager saw at once that bank guarantee was not genuine
– whether plaintiff has suffered any loss by director’s

Competition and Consumer Act 2010 (Cth), Sch 2 (‘Australian
Consumer Law’)

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