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Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20

ACCC

Strategy 1 Maintain and promote competition

Table A10.1: Proceedings commenced in 2019−20

Competition

Cartel (enduring priority)

BlueScope Steel Limited & Anor

commenced

30 August 2019

jurisdiction

Federal Court Melbourne

Misuse of market power (2019 priority)

Tasmanian Ports Corporation Pty Ltd

commenced

9 December 2019

jurisdiction

Federal Court Melbourne

Cartel (enduring priority)

Wallenius Wilhelmsen Ocean AS

commenced

23 August 2019

jurisdiction

Federal Court Sydney

Non-compliance and other proceedings

Inciting the obstruction of a Commonwealth official in the performance of their functions

Jason Ellis

commenced

8 October 2019

Jurisdiction

NSW Local Court

Table A10.2: Proceedings concluded in 2019−20

Competition

Cartel (enduring priority)

Cascade Coal Pty Ltd & Ors (appeal)

commenced

25 May 2015

concluded

4 September 2019

jurisdiction

Federal Court Sydney

outcome

ACCC appeal dismissed

Cartel (enduring priority)

Kawasaki Kisen Kaisha Ltd

commenced

15 November 2016

concluded

2 August 2019

jurisdiction

Federal Court Sydney

outcome

Convicted of criminal cartel conduct and ordered to pay a fine of $34.5 million

Anti-competitive conduct (enduring priority)

Ramsay Health Care Australia Pty Limited

commenced

1 May 2017

concluded

12 March 2020

jurisdiction

Federal Court Sydney

outcome

ACCC case dismissed

Table A10.3: Proceedings continuing in 2019−20

Competition

Cartel (enduring priority)

Australia and New Zealand Banking Group Ltd (ANZ)

commenced

5 June 2018

jurisdiction

Downing Centre Local Court Sydney

Cartel (enduring priority)

Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) & Anor

commenced

16 August 2018

jurisdiction

ACT Magistrates Court

Cartel (enduring priority)

Citigroup Global Markets Australia Pty Limited

commenced

5 June 2018

jurisdiction

Downing Centre Local Court Sydney

Cartel (enduring priority)

Country Care Pty Ltd & Ors

commenced

14 February 2018

jurisdiction

Magistrates’ Court of Victoria

Cartel (enduring priority)

Deutsche Bank Aktiengesellschaft (Deutsche Bank)

commenced

5 June 2018

jurisdiction

Downing Centre Local Court Sydney

Anti-competitive conduct (enduring priority)

NSW Ports Operations Hold Co Pty Ltd & Ors

commenced

10 December 2018

jurisdiction

Federal Court Sydney

Cartel (enduring priority)

PT Garuda Indonesia Ltd (appeal)

commenced

18 April 2016

jurisdiction

Federal Court Sydney

Cartel (enduring priority)

Vina Money Transfer Pty Ltd & Ors

commenced

11 April 2019

jurisdiction

Melbourne Magistrates’ Court

Anti-competitive conduct (acquisition)

ACCC v Pacific International Pty Ltd & Ors (High Court special leave application—pending)

commenced

18 July 2018

jurisdiction

High Court of Australia

Strategy 2: Protect the interests and safety of consumers and support fair trading in markets affecting consumers and small business

Table A10.4: Proceedings commenced in 2019−20

Consumer and small business protection

Misleading or deceptive conduct, false or misleading representations

Broadband services (2018 priority)

Dodo Services Pty Ltd & Anor

commenced

22 June 2020

jurisdiction

Federal Court Melbourne

Misleading or deceptive conduct, false or misleading representations

Digital platforms, algorithms and consumer data (2018 priority)

Google Australia Pty Ltd & Anor

commenced

29 October 2019

jurisdiction

Federal Court Sydney

Misleading or deceptive conduct

Digital platforms, algorithms and consumer data (2018 priority)

HealthEngine Pty Ltd

commenced

7 August 2019

jurisdiction

Federal Court Sydney

False or misleading representations, unconscionable conduct

New car retailing (2017 priority)

Mazda Australia Pty Ltd

commenced

31 October 2019

jurisdiction

Federal Court Melbourne

False or misleading representations

Priority factor—conduct of significant public interest or concern

Medibank Private Limited (t/a ahm)

commenced

3 September 2019

jurisdiction

Federal Court Melbourne

Misleading or deceptive conduct, false or misleading representations

Priority factor—national conduct by large trader

Oscar Wylee Pty Ltd

commenced

13 December 2019

jurisdiction

Federal Court Sydney

False or misleading representations

Consumer guarantees involving large or national traders (2018 priority)

Samsung Electronics Australia Pty Ltd

commenced

4 July 2019

jurisdiction

Federal Court Melbourne

Unsolicited consumer agreements Broadband services (2018 priority)

Superfone Pty Ltd

commenced

10 December 2019

jurisdiction

Federal Court Melbourne

Misleading or deceptive conduct

Priority factor—conduct of significant public interest or concern

TPG Internet Pty Ltd (appeal)#

commenced

8 November 2019

jurisdiction

Full Court of the Federal Court

Misleading or deceptive conduct

Priority factor—conduct of significant public interest or concern

Woolworths Limited (appeal)

commenced

2 August 2019

jurisdiction

Full Court of the Federal Court Melbourne

#On 30 July 2020, the Full Federal Court handed down judgment dismissing the ACCC’s appeal.

Table A10.5: Proceedings concluded in 2019−20

Consumer and small business protection

Unfair contract terms

Vulnerable and disadvantaged consumers (enduring priority)

Ashley & Martin Pty Ltd

commenced

29 November 2017

concluded

24 October 2019

jurisdiction

Federal Court Perth

outcome

Standard contract terms in three standard form consumer contracts are void after being declared unfair contract terms (UCTs). Court ordered Ashley & Martin to refund money paid by consumers as a result of these UCTs.

False or misleading representations

Vulnerable and disadvantaged consumers (enduring priority)

Bupa Aged Care Australia Pty Ltd

commenced

17 April 2019

concluded

12 May 2020

jurisdiction

Federal Court Melbourne

outcome

Penalties of $6 million

Bupa also ordered, by consent, to compensate all affected current and past residents within 12 months.

False or misleading representations, systematic unconscionable conduct

Vulnerable and disadvantaged consumers (enduring priority)

Cornerstone Investment Australia Pty Ltd (t/a Empower Institute)

commenced

9 December 2015

concluded

14 August 2019

jurisdiction

Federal Court Sydney

outcome

Penalties of $26.5 million and repayment of $56 million to the Commonwealth

Excess surcharging (2017 priority)

CLA Trading Pty Ltd (t/a Europcar)

commenced

25 July 2018

concluded

14 August 2019

jurisdiction

Federal Court Melbourne

outcome

Penalties of $350 000

False or misleading representations, unconscionable conduct, failure to act in good faith

Industry codes (2015 priority)

Geowash Pty Ltd

commenced

26 May 2017

concluded

24 January 2020

jurisdiction

Federal Court Perth

outcome

Penalties of $4.2 million, including penalties of $1.045 million against director Ms Sanam Ali and $656 0000 against franchising manager Mr Charles Cameron.

Ms Ali and Mr Cameron were ordered to pay $1 million as partial redress to affected franchisees.

Ms Ali was disqualified from managing corporations in Australia for five years and Mr Cameron for four years.

False or misleading representations

Consumer issues in the health and medical sector (2016 priority)

GlaxoSmithKline Consumer Healthcare Australia Pty Ltd & Novartis Consumer Health Australasia Pty Ltd

commenced

5 December 2017

concluded

28 May 2020

jurisdiction

Federal Court Sydney

outcome

Penalties of $4.5 million ($1.5 million against GSK and $3 million against Novartis)

False or misleading representations

Priority factor—conduct of significant public interest or concern

Kimberly-Clark Australia Pty Ltd (appeal)

commenced

26 July 2019

concluded

15 June 2020

jurisdiction

Full Court of the Federal Court Sydney

outcome

ACCC appeal dismissed

False or misleading representations

Priority factor—conduct of significant public interest or concern

LG Electronics Australia Pty Ltd (appeal)

commenced

25 September 2017

concluded

6 September 2019

jurisdiction

Full Federal Court Sydney

outcome

Penalties of $160 000

Unfair contract terms Industry codes (2017 priority)

Mitolo Group Pty Ltd & Anor

commenced

25 June 2018

concluded

2 August 2019

jurisdiction

Federal Court Melbourne

outcome

Penalties of $240 000 and declaration that certain terms in standard form contracts are UCTs and therefore void

False or misleading representations

Priority factor—conduct of significant public interest or concern

Optus Internet Pty Limited & Anor

commenced

24 June 2019

concluded

2 December 2019

jurisdiction

Federal Court Melbourne

outcome

Penalties of $6.4 million

False or misleading representations, unconscionable conduct

Vulnerable and disadvantaged consumers (enduring priority)

Panthera Finance Pty Ltd

commenced

4 July 2019

concluded

16 March 2020

jurisdiction

Federal Court Sydney

outcome

Penalties of $500 000

False or misleading representations

Priority factor—conduct of significant public interest or concern

Sony Interactive Entertainment Network Europe Limited & Anor

commenced

23 May 2019

concluded

5 June 2020

jurisdiction

Federal Court Melbourne

outcome

Penalties of $3.5 million

Misleading or deceptive conduct

Priority factor—conduct of significant public interest or concern

STA Travel Pty Ltd

commenced

28 March 2019

concluded

23 April 2020

jurisdiction

Federal Court Melbourne

outcome

Penalties of $14 million

False or misleading representations, failure to act in good faith

Industry codes (2015 priority)

Ultra Tune Australia Pty Ltd (appeal)

commenced

19 May 2017

concluded

23 September 2019

jurisdiction

Full Federal Court Sydney

outcome

Confirmed franchisor obligations, but reduced penalties from $2.6 million to $2 million

False or misleading representations, unconscionable conduct, unsolicited consumer agreements

Vulnerable and disadvantaged consumers (enduring priority)

Unique International College Pty Ltd (appeal)

commenced

13 December 2017

concluded

31 October 2019

jurisdiction

Federal Court Sydney

outcome

Penalties of $4.165 million

Table A10.6: Proceedings continuing in 2019−20

Consumer and small business protection

Misleading or deceptive conduct, unconscionable conduct

Vulnerable and disadvantaged consumers (enduring priority)

Australian Institute of Professional Education Pty Ltd

commenced

31 March 2016

jurisdiction

Federal Court Sydney

Misleading or deceptive conduct, unconscionable conduct

Priority factor—conduct that results in substantial consumer or small business detriment

Employsure Pty Ltd

commenced

21 December 2018

jurisdiction

Federal Court Sydney

Misleading or deceptive conduct

Energy services (2018 priority)

iSelect Limited

commenced

11 April 2019

jurisdiction

Federal Court Melbourne

False or misleading representations, unconscionable conduct

Consumer guarantees (2016 priority)

Jayco Corporation Pty Ltd

commenced

29 November 2017

jurisdiction

Federal Court Melbourne

Misleading or deceptive conduct

Franchising Code (2018 priority)

Jump Loops Pty Ltd & Ors

commenced

18 June 2019

jurisdiction

Federal Court Melbourne

Misleading or deceptive conduct

Priority factor—conduct demonstrating a blatant disregard for the law

Kogan Australia Pty Ltd

commenced

23 May 2019

jurisdiction

Federal Court Melbourne

Misleading or deceptive conduct, false or misleading representations, unconscionable conduct

Vulnerable and disadvantaged consumers (enduring priority)

NIB Health Funds Limited

commenced

30 May 2017

jurisdiction

Federal Court Melbourne

False or misleading representations, unconscionable conduct

Vulnerable and disadvantaged consumers (enduring priority)

Phoenix Institute of Australia Pty Ltd & Anor

commenced

24 November 2015

jurisdiction

Federal Court Sydney

Unconscionable conduct

Vulnerable and disadvantaged consumers (enduring priority)

Productivity Partners Pty Ltd (t/a Captain Cook College)

commenced

9 November 2018

jurisdiction

Federal Court Sydney

Misleading or deceptive conduct

Priority factor—conduct of significant public interest or concern

Quantum Housing Group Pty Ltd

commenced

16 May 2019

jurisdiction

Federal Court Perth

The Federal Court handed down judgment imposing penalties of $700 000 against Quantum and $50 000 against sole director Cheryl Howe, and ordering that she be banned from managing a corporation for three years, after finding that Quantum made false or misleading representations.

The ACCC has since filed an appeal against an aspect of the Federal Court’s judgment, being the decision that Quantum did not engage in unconscionable conduct.

Misleading or deceptive conduct

Priority factor—where action is likely to have an educative or deterrent effect

Service Seeking Pty Ltd

commenced

14 December 2018

jurisdiction

Federal Court Perth

Misleading or deceptive conduct, unconscionable conduct, unfair contract terms

Priority factor—conduct of significant public interest or concern

Smart Corporation Pty Ltd (t/a Australian 4WD Hire)

commenced

17 April 2019

jurisdiction

Federal Court Perth

False or misleading representations

Priority factor—conduct resulting in substantial consumer or small business detriment

Trivago N.V.

commenced

23 August 2018

jurisdiction

Federal Court Melbourne

The Federal Court previously handed down judgment on liability, finding that Trivago engaged in almost

all of the conduct alleged. On 4 May 2020 Trivago appealed the liability judgment. The appeal is being heard in 2020–21.

Misleading or deceptive conduct, false or misleading representations

Priority factor—conduct resulting in substantial consumer or small business detriment

Viagogo

commenced

28 August 2017

jurisdiction

Federal Court Sydney

False or misleading representations

Truth in advertising (2015 priority)

Volkswagen AG

commenced

31 August 2016

jurisdiction

Federal Court Sydney

The Federal Court previously ordered a pecuniary penalty of $125 million against Volkswagen AG. On 11 February 2020, Volkswagen AG appealed the penalty judgment. The appeal will be heard in 2020–21.

Strategy 3: Promote the economically efficient operation of, use of, and investment in infrastructure; and identify market failure

Table A10.7: Proceedings commenced in 2019−20

Consumer and small business protection

False or misleading claims about the NBN broadband speeds their customers could typically achieve during busy evening hours.

Dodo Services Pty Ltd (Dodo) and Primus Telecommunications Services Pty Ltd (iPrimus) (both part of the Vocus Group)

commenced

22 June 2020

jurisdiction

Federal Court Melbourne

AER

Strategy 5: Promote efficient investment in, and efficient operation and use of, energy services for the long-term interests of consumers with respect to price, quality, safety, reliability and security

Details of civil proceedings instituted by the AER in 2019−20 under the National Electricity Law and National Energy Retail Law.

Table A10.8: Proceedings commenced in 2019−20

Obligation to comply with Generator Performance Standards and obligations under the National Electricity Rules

Subsidiaries of AGL Energy Limited, Neoen SA, Pacific Hydro Pty Ltd and Tilt Renewables Limited

commenced

6 August 2019

jurisdiction

Federal Court Adelaide

Obligations to submit accurate generator availability information to the market operator under the National Electricity Rules

Pelican Point Power Limited

commenced

26 August 2019

jurisdiction

Federal Court Adelaide

Obligation of regulated entities to submit information and data about their performance and activities in the retail energy market to the AER in accordance with the National Energy Retail Law

Subsidiaries of AGL Energy Limited

commenced

11 November 2019

jurisdiction

Federal Court Melbourne

Obligations to maintain and implement a customer hardship policy and offer and apply payment plans under the National Energy Retail Law and the National Energy Retail Rules

EnergyAustralia Pty Ltd

commenced

20 November 2019

jurisdiction

Federal Court Melbourne

Obligation to register premises as requiring life support equipment and related obligations under the National Energy Retail Rules

EnergyAustralia Pty Ltd

commenced

8 April 2020

jurisdiction

Federal Court Melbourne

There were no Australian Competition Tribunal matters that took place during 2019–20.