Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20
ACCC
Strategy 1 Maintain and promote competition
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 |
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 |
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
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.
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 |
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
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.
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.
Visit
https://www.transparency.gov.au/annual-reports/australian-competition-and-consumer-commission/reporting-year/2019-20-21