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19 March 2019 - Country Care cartel case before Federal Court

The Country Care Group Pty Ltd, its Managing Director and a former employee were committed to stand trial last week an all of the cartel charges laid against them by the CDPP.

The first case management hearing was heard this morning before Justice Wigney. The Prosecutor was ordered to file and serve an Indictment by 14 May 2019. The matter was listed for a further Case Management Hearing at 9:30am on 2 July 2019.

A trial is to be listed for hearing to commence on 14 October 2019 with an estimated duration of 6 weeks.

For case details see my Country Care case page.


Lady Justice holding scales of justice

14 March 2019 - Country Care cartel case committed for trial

The Country Care Group Pty Ltd, its Managing Director and a former employee have been committed to stand trial in the Federal Court an all of the cartel charges laid against them by the CDPP.

The committal order was filed in the Federal Court today. The matter is listed for the first case management hearing before Justice Wigney next Tuesday 19 March. Justice Wigney also presided over the first criminal cartel case (CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 (involved a guilty plea))

See Podcast with James Panichi and Laurel Henning: 'Country Care cartel case resonates in Australia; New Zealand's draft privacy laws move forward' (mlex, 14 March 2019).

See also ACCC, 'Country Care cartel case committed for trial in Federal Court' (13 March 2019).

See also Christine Caulfield, 'Country Care faces trial in first criminal cartel case against Australian Company' (Lawyerly, 13 March 2019) and Michael DiFabriziio, 'Country Care to face cartel conduct charges' (Sunraysia Daily, 14 March 2019) and mlex's James Panichi on twitter.



13 March 2019 - Black & White Cabs fails in bid of interlocutory mandatory injunction

Black & White Cabs made application for an interlocutory mandatory injunction requiring Regent Taxis to continue to provide it with booking and dispatch services. Questions arose as to whether there was a prima facie case of breach of contract, contravention of s 46 or contravention of s 47 of the CCA.

Justice Jackson considered that the applicant's proof to this point was not sufficient to grant the injunction; 'the balance of convenience favours not granting an interlocutory injunction until trial'.

See Black & White Cabs Pty Ltd & Ors v Regent Taxis Limited [2019] QSC 50.

See further Miklos Bolza, 'Black & White Cabs loses injunction bid in misuse of market power case' (Lawyerly, 12 March 2019) (subscription)


Digital advertising

12 March 2019 - Second tranche of submissions to ACCC's Digital Platforms Inquiry published and date for Final Report extended

The second tranche of submissions in response to the ACCC’s Digital Platforms Inquiry Preliminary Report are now available on the ACCC’s website. There are 27 new submissions available (on my count ...)

The Treasurer has also agreed to extend the due date for submission of the Final Report from 3 June to 30 June in response to an ACCC request.


Hotel room

12 March 2019 - Labor takes aim at price parity clauses for hotels

The ALP has announced that, if elected, it would ensure Australia's accommodation providers can set their own prices on personal websites, regardless of price parity clauses with online booking platforms, including Expedia and Booking.com.

See Andrew Leigh MP's media release (12 March 2019).

See also Shane Wright, 'Labor plan to boost hotels by helping them stand up to online booking giants' (The Canberra Times, 12 March 2019).



8 March 2019 - Ramsay Health Care case - surgeon taped meetings

The hearing in the ACCC's misuse of market power and exclusive dealing case against Ramsay Health Care commenced on 25 February. On 8 March the Court heard that a surgeon recorded one of the meetings central to the ACCC's case:

For details see: Cat Fredenburgh, 'Doctor taped meeting where Ramsay Health unit CEO made alleged threats, trial hears' (Laywerly, 8 March 2019).

View case page.



Digital platform icons

4 March 2019 - Submissions to Digital Platforms Inquiry available

The ACCC has published the submissions made on the Digital Platforms Inquiry Preliminary Report.

A total of 86 submissions are available on the website.

View submissions.


Petrol pump

1 March 2019 - ACCC accepts variation of Woolworths fuel discount scheme

The ACCC has accepted a variation to a 2013 undertaking provided by Woolworths in relation to shopper docket fuel discount offers. The variation has been brought about by the proposed sale of Woolworths' service stations to EG Group and the variation allows Woolworths to fund fuel discounts from outside its petrol division.

There is no change to the cap on 4 cents per litre for fuel discounts linked to supermarket purchases.

See ACCC, 'Woolworths fuel discount undertaking varied' (1 March 2019).

See Woolworths Limited - variation - s.87B undertaking.


Railway tracks

28 February 2019 - Interstate rail network access undertaking revised to operate for 12 more months

The ACCC has announced that the' Australian Rail Track Corporation's 2008 interstate rail network access undertaking has been revised to operate for another 12 months'.

View ACCC, 'Interstate rail network access undertaking to continue' (28 February 2019).

View January 2019 variation of Interstate Access Undertaking.


Rubbish bins

28 February 2019 - ACCC does not oppose Bingo's proposed acquisition of Dial-a-Dump

The ACCC has announced it will not oppose Bingo's 'proposed acquisition of Dial-a-Dump after accepting enforceable undertakings from Bingo to divest its Banksmeadow processing facility.

See ACCC, 'Bingo’s acquisition of Dial-a-Dump not opposed, subject to divestiture undertaking' (28 February 2019)

See merger register.


Digital advertising

27 February 2019 - ACCC seeks further input on digital advertising

The ACCC has called for further input from the advertising industry on the digital platforms inquiry preliminary recommendations. In a speech delivered at SIms stated:

... publishers are arguing that because of the lack of transparency, advertisers don’t often know where their advertising appears online, and if they did they would be more likely to spend money with them.

We have not yet reached a view on these issues and we are continuing to examine the ad-tech supply chain with a view to understand better how it works and how this impacts advertisers.

In this we would like your help. ...

View Sims, 'Examining the impact of digital platforms on competition in media and advertising markets' (Speech at ThinkTV & ANAA Top 50 CMO Event, 27 February 2019)

See also ACCC, 'More input needed on digital advertising' (27 February 2019)


Rod Sims

27 February 2019 - ACCC releases 2019 priorities

In his annual address to the Committee for Economic Development Australia (CEDA), ACCC Chair, Rod Sims, launched the ACCC's 2019 Compliance and Enforcement Policy.

In relation to competition policy SIms noted the following:

  • The ACCC aims to have 2-3 criminal cartel investigations to conclude and prosecutions to commence this year. At least three significant cartel investigations are expected to be referred to the CDPP.
  • The SLC unit is aiming to take 2-3 cases to court this year (in addition to cases being pursued by other ACCC enforcement teams)
  • Misuse of market power and concerted practices will be a particular focus, with Sims expressing confidence that proceedings will be instituted under these provisions this year
  • The Financial Services Competition Branch has been established to complement the market studies team; this will include supporting the CDPP in its cartel prosecution of certain banks and bank officers commenced in 2018
  • The commercial construction sector will be a focus area, with a dedicated Commercial Construction Unit (including support for CDPP prosecution of CFMMEU)

In relation to market studies Sims referred to a number of areas, including the Digital Platforms Inquiry, and further noted that a key focus will be advancing the ACCC's work on the Consume Data Right (not actually a market study).

In relation to advocacy Sims noted key priorities included reform to unfair contract laws, prohibition on the sale of unsafe goods and continued debate about the adequacy of 'laws against companies engaging in "harsh and unfair conduct" towards consumers'. He also noted advocacy in relation to privatisation, airports and road reform, amongst other things.

Sims also expressed concern that the 'bar for establishing a likely substantial lessening of competition' may be becoming too high and that the weight given to self-interested business testimony might be trumping 'clear commercial logic'. He further suggested that there seems to be a 'current bias to excessive consolidation' and that we as 'a community ... need to question whether this is the outcome we want'.

View ACCC 2019 Compliance and Enforcement Policy (see also summary version).

View Rod Sims, '2019 Compliance and Enforcement Policy' (speech to Committee for Economic Development Australia (CEDA), 26 February 2019.

View ACCC, 'ACCC 2019 focus on consumer guarantees and anti-competitive practices' (Media Release, 26 February 2019).



22 February 2019 - Google's turn to criticise ACCC's algorithm proposal

On Monday Facebook's Vice President of APAC Policy, Simon Milner, published a blog piece criticising the preliminary recommendation (rec 3) in the ACCC's Digital Platforms Inquiry. The recommendation is that there be a regulatory authority tasked with, among other things, assessing the impact of ranking news with the aim of identifying the effects of algorithms on production of news and journalistic content.

Now it's Google's turn - and Google agrees with Facebook that an algorithm regulator is not the way to go, but it's also keen to distinguish itself from 'social media sites': Google Australia, Our response to the ACCC Digital Platforms Inquiry Preliminary Report' (21 February 2019).

Submissions on the Preliminary Report were due last Friday (15 Feb). They are not yet available on the Inquiry website.

See Vanessa Mitchell, 'Google hits back at ACCC, says algorithm regulator risks poor outcomes' (CMO, 21 February 2019), Orlaith Costello, 'Google hits back at ACCC' (Channel news, 22 Feb 2019), Charles McConnell, 'ACCC should reconsider competitive landscape, Google says' (GCR, 21 February 2019).


Dollar signs

22 February 2019 - No adverse cost orders for Part IV litigation

On Monday the Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House. This included repealing s 51(3) (effective 6 months after Royal Assent).

In addition, during the course of its passage several amendments were proposed by the Senate, including opposition amendment 8552 which added small business access to justice provisions. The amendment provides for assistance by the Ombudsman in relation to Part IV actions involving small business or family enterprises (via amendments to the Australian Small Business and Family Enterprise Ombudsman Act 2015) and provides for 'no adverse costs orders' in relation to Part IV actions affecting small business or family enterprises.

To facilitate the no adverse costs orders change, s 82 will be amended to allow the court to order that an applicant is not liable for the costs of the respondent, regardless of the outcome. Certain criteria must be satisfied before the court can make such an order (including that the action raises a reasonable issue for trial). The change will apply to actions brought on or after 1 July 2019.

See Hansard extract of Andrew Leigh MP discussing this amendment, including the following:

Labor's small business access to justice policy allows a small business to request a no adverse cost order when bringing on a court action for a breach of competition law. If the judge decides the case is in the public interest, the small business won't risk paying the big business's costs if they lose. As the Harper competition review concluded, 'there are significant barriers to small business taking private action to enforce competition laws.' Many commentators have noted that small business isn't scared so much of their own legal costs, but of being bankrupted by the legal costs of the other side.


NZ Australia map - source from Pixabay

20 February 2019 - Updates from across the ditch: NZ proposes misuse of market power effects test

The NZ government is proposing to amend the Commerce Act to introduce an effects test for misuse of market power (and to repeal certain IP exemptions). A review is open for submissions until April Fools Day ... really ...

Nick Crang (Duncan Cotterill) discusses the proposed changes here: Nick Crang, 'Changes to Commerce Act would restrict actions of firms with substantial market power' (Mondaq, 20 February 2019).

See also:


Pacific National train
Image: By Tjbulic (Own work) [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

20 February 2019 - ACCC v Pacific National and Aurizon back in court

In July last year the ACCC instituted proceedings against Pacific National and Aurizon: See ACCC's original media release (19 July 2019).

The hearing has continued before Justice Beach this week; mlex reporter, James Panichi has been following the action and reports 'grumpiness' in the Federal Court ...

See also: Christine Caulfield, 'ACCC cuts collusion claims as trial against Pacific National, Aurizon comes to an end' (Lawyerly, 15 Feb 2019).


IP protection

18 February 2019 - Bill to repeal s 51(3) CCA passes both houses

The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 passed the House today; it has now passed both houses. The change is scheduled to commence six months after the Act receives Royal Assent.

The House considered Senate amendments unrelated to the s 51(3) change.

View bill as passed by both houses (relevantly schedule 4).

See also 'Where to now? Longstanding IP exemption repealed in Australian competition laws' (Gilbert+Tobin, 19 February 2019)


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Images copyright: Images in the Hot Topic section (left column): male runner on starting blocks courtesy of stockimages at FreeDigitalPhotos.net; gas pump filling nozzles courtesy of Rawich at FreeDigitalPhotos.net and price magnifier definition means promotions and savings courtesy of Stuart Miles at FreeDigitalPhotos.net.(right column): business man and stock graph report courtesy of watcharakun at FreeDigitalPhotos.net; vacations computer key courtesy of Stuart Miles (Image ID: 10091676) at FreeDigitalPhotos.net; handshaking courtesy of Photokanok at FreeDigitalPhotos.net.


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