ACCC & AER annual report 2016-17

Appendix 9: Litigation matters, review proceedings and tribunal proceedings in 2016–17

ACCC

Strategy 1 Maintain and promote competition

Litigation concluded and judgments in 2016−17

Cartel

Australia and New Zealand Banking Group Ltd

commenced | 25 November 2016

concluded | 14 December 2016

jurisdiction | Federal Court Sydney

outcome | Pecuniary penalty of $9 million, and contribution of $200 000 to ACCC costs.

Cartel

Macquarie Bank Ltd

commenced | 25 November 2016

concluded | 14 December 2016

jurisdiction | Federal Court Sydney

outcome | Pecuniary penalty of $6 million, and contribution of $200 000 to ACCC costs.

Cartel

Olex Australia Pty Ltd

commenced | 4 December 2014

concluded | 10 March 2017

jurisdiction | Federal Court Melbourne

outcome | ACCC case dismissed.

Litigation continuing at the end of 2016−17

Cartels

Australian Egg Corporation Limited & Ors (appeal)

commenced | 28 May 2014

jurisdiction | Federal Court Adelaide

Cartels

Cascade Coal Pty Ltd & Ors

commenced | 28 May 2014

jurisdiction | Federal Court Sydney

Anti-competitive agreements and practices

Cement Australia Pty Ltd & Ors (Appeal)

commenced | 12 September 2008

jurisdiction | Federal Court Brisbane

Cartels

Colgate-Palmolive Pty Ltd & Ors

commenced | 12 December 2013

jurisdiction | Federal Court Sydney

Secondary boycotts

Construction Forestry Mining and Energy Union (CFMEU)

commenced | 20 November 2014

jurisdiction | Federal Court Melbourne

Anti-competitive agreements and practices

Flight Centre Ltd Flight Centre Ltd (High Court appeal)

commenced | 9 March 2012

jurisdiction | Federal Court Brisbane

outcome | Successful High Court appeal by the ACCC. Case ongoing. Penalty to be decided in 2017.

Cartel

Nippon Yusen Kabushiki Kaisha

commenced | 14 July 2016

jurisdiction | Federal Court NSW Criminal Division

Cartel

Oakmoore Pty Ltd, Palram Inc, Ampelite Pty Ltd & Ors

commenced | 23 June 2016

jurisdiction | Federal Court Brisbane

Misuse of market power and exclusive dealing

Pfizer Australia Pty Ltd (appeal)

commenced | 13 February 2014

jurisdiction | Federal Court Sydney

Cartels

Prysmian Cavi E Sistemi S.R.L.

commenced | 23 September 2009

jurisdiction | Federal Court Adelaide

outcome | ACCC’s case against Nexans SA dismissed. Case against other respondents ongoing.

Cartels

P.T. Garuda Indonesia Ltd (appeal)

commenced | 2 September 2009

jurisdiction | Federal Court Sydney

Cartels

Yazaki Corporation & Australian Arrow Pty Ltd (appeal)

commenced | 13 December 2012

jurisdiction | Federal Court Adelaide

outcome | Pecuniary penalty of $9.5 million has been appealed by the ACCC. Case ongoing.

Litigation commenced in 2016−17

Cartel

Australia and New Zealand Banking Group Ltd

commenced | 25 November 2016

concluded | 14 December 2016

Details as above in Litigation concluded

Cartel

Kawasaki Kisen Kaisha Ltd

commenced | 2 November 2016

jurisdiction | Downing Centre Local Court Sydney

Cartel

Macquarie Bank Ltd

commenced | 25 November 2016

concluded | 14 December 2016

Details as above in Litigation concluded

Cartel

Nippon Yusen Kabushiki Kaisha

commenced | 14 July 2016

jurisdiction | Federal Court NSW Criminal Division

Anti-competitive agreements

Ramsay Health Care Australia Pty Ltd

commenced | 1 May 2017

jurisdiction | Federal Court Sydney

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

Litigation concluded in 2016−17

Vulnerable consumers

Acquire Learning & Careers Pty Ltd

commenced | 17 December 2015

concluded | 30 May 2017

jurisdiction | Federal Court Melbourne

outcome | Declarations, pecuniary penalty of $4.5 million, audits of compliance programs, ACCC costs of $100 000.

Truth in advertising—False and misleading

Dulux Group Australia Pty Ltd

commenced | 5 December 2012

concluded | 2 November 2016

jurisdiction | Federal Court Perth

outcome | Pecuniary penalty of $400 000, undertaking to court, declarations, corrective notices in newspaper and on Dulux’s webpage, and payment of 150 000 costs.

False and misleading—health and medical

Elusion New Zealand Ltd

commenced | 20 June 2016

concluded | 3 May 2017

jurisdiction | Federal Court Perth

outcome | Pecuniary penalty of $40 000 against ENZ, John Burden to pay $15 000, declarations, injunctions, publication orders, compliance orders, and contribution from ENZ and Burden of $5000 each towards ACCC costs.

Unconscionable conduct in telecommunications sector

Harrison Telecommunication companies & James Harrison

commenced | 4 April 2016

concluded | 2 March 2017

jurisdiction | Federal Court Melbourne

outcome | Pecuniary penalties totalling $250 000 James Harrison to pay $50 000, disqualification order for three years, consumer refunds and payment of ACCC costs.

Drip pricing

Jetstar Airways Pty Ltd

commenced | 19 June 2014

concluded | 7 March 2017

jurisdiction | Federal Court Sydney

outcome | Pecuniary penalty of $545 000, declarations, each party to bear its own costs.

Indigenous consumers

Lifestyle Photographers Pty Ltd t/a Expression Sessions

commenced | 18 September 2015

concluded | 20 December 2016

jurisdiction | Federal Court Sydney

outcome | Pecuniary penalty of $1.1 million, declarations and contracts void ab initio, injunction, corrective notice and payment of ACCC costs.

Vulnerable consumers

NRM Corporation Pty Ltd, NRM Trading Pty Ltd, Jacov Vaisman t/a Advanced Medical Institute Pty Ltd (appeal)

commenced | 21 December 2010

concluded | 22 July 2016

jurisdiction | Federal Court Melbourne

outcome | Full Federal Court upheld finding of unconscionable conduct. Appeal dismissed.

Product safety

Ozsale Pty Ltd

commenced | 8 December 2015

concluded | 29 August 2016

jurisdiction | Federal Court Sydney

outcome | Pecuniary penalties of $500 000 declarations, injunction, compliance program and contribution of $50 000 to the ACCC costs.

False and misleading

Reckitt Benckiser (Australia) Pty Ltd

commenced | 4 March 2015

concluded | 5 April 2017

jurisdiction | High Court

outcome | Reckitt Benckiser to pay a revised penalty of $6 million (up from $1.7 million) . High Court dismissed Reckitt Benckiser’s special leave application with costs.

Scam

Sensaslim Australia Pty Ltd & Ors

commenced | 15 July 2011

concluded | 24 November 2016

jurisdiction | Federal Court Sydney

outcome | Appeal by Mr Foster dismissed by Federal Court.

False and misleading—health and medical

Social-Lites Pty Ltd

commenced | 20 June 2016

concluded | 4 May 2017

jurisdiction | Federal Court Brisbane

outcome | Pecuniary penalty of $50 000 against Social-Lites, Lee O’Hare to pay $10 000, declarations, injunctions, publication orders, compliance orders, and contribution from Social-Lites and O’Hare of $5000 each towards ACCC costs.

False and misleading

Taxsmart Group Pty Ltd

commenced | 20 June 2013

concluded | 6 February 2017

jurisdiction | Federal Court Melbourne

outcome | Costs issue resolved.

False and misleading—health and medical

The Joystick Company Pty Ltd

commenced | 9 September 2016

concluded | 4 May 2017

jurisdiction | Federal Court Melbourne

outcome | Pecuniary penalty of $50 000 against TJSC Pty Ltd, Alexander McDonell to pay $10 000, declarations, compliance orders and contribution from TJSC and McDonell of $5000 each towards ACCC costs.

Drip pricing

Virgin Australia Airways Pty Ltd

commenced | 19 June 2014

concluded | 7 March 2017

jurisdiction | Federal Court Sydney

outcome | Pecuniary penalty of $200 000, declarations, each party to bear its own costs.

Small business

Woolworths Ltd

commenced | 10 December 2015

concluded | 8 December 2016

jurisdiction | Federal Court Sydney

outcome | ACCC case dismissed.

Litigation continuing at the end of 2016−17

Vulnerable and disadvantaged consumers

ACM Group Ltd

commenced | 2 June 2016

jurisdiction | Federal Court Sydney

Vulnerable and disadvantaged consumers

Australian Institute of Professional Education Pty Ltd

commenced | 31 March 2016

jurisdiction | Federal Court Sydney

Vulnerable and disadvantaged consumers

Cornerstone Investment Australia Pty Ltd t/a Empower Institute

commenced | 9 December 2015

jurisdiction | Federal Court Sydney

Vulnerable and disadvantaged consumers

Clinica Internationale Pty Ltd & Anor (appeal)

commenced | 15 May 2015

jurisdiction | Federal Court Melbourne

Institution of proceedings against related companies Swishette Pty Ltd and Letore Pty Ltd.

False or misleading representations

H.J. Heinz Company Australia Ltd

commenced | 21 June 2016

jurisdiction | Federal Court Adelaide

Consumer guarantees

LG Electronics Australia Pty Ltd

commenced | 15 December 2015

jurisdiction | Federal Court Melbourne

Health and medical

Medibank Private Ltd

commenced | 15 June 2016

jurisdiction | Federal Court Melbourne

Vulnerable and disadvantaged consumers

Phoenix Institute of Australia Pty Ltd & Anor

commenced | 24 November 2015

jurisdiction | Federal Court Sydney

Credence claims

Snowdale Holdings Pty Ltd

commenced | 9 December 2013

jurisdiction | Federal Court Perth

Vulnerable and disadvantaged consumers

Unique International College Pty Ltd

commenced | 27 October 2015

jurisdiction | Federal Court Sydney

Consumer guarantees

Valve Corporation Pty Ltd (appeal)

commenced | 28 August 2014

jurisdiction | Federal Court Sydney

False or misleading representations

We Buy Houses Pty Ltd and Rick Otton

commenced | 2 March 2015

jurisdiction | Federal Court Sydney

Litigation commenced in 2016−17

Small business scams

ABG Pages Pty Ltd

commenced | 15 December 2016

jurisdiction | Federal Court Brisbane

Misleading representations

Apple Pty Ltd and Apple Inc

commenced | 6 April 2017

jurisdiction | Federal Court Melbourne

Car retailing

Audi Aktiengesellschaft, Audi Australia Pty Ltd and Volkswagen Aktiengesellschaft

commenced | 7 March 2017

jurisdiction | Federal Court Sydney

Consumer online

Aveling Homes Pty Ltd

commenced | 9 March 2017

jurisdiction | Federal Court Perth

Consumer guarantees and Contempt of court

Dhruv Chopra

commenced | 4 November 2016

jurisdiction | Federal Court Melbourne

Franchising

Geowash Pty Ltd

commenced | 31 May 2017

jurisdiction | Federal Court Perth

Vulnerable and disadvantaged consumers

Get Qualified Australia Pty Ltd

commenced | 9 September 2016

jurisdiction | Federal Court Melbourne

Credence claims

Kimberly-Clark Australia Pty Ltd

commenced | 12 December 2016

jurisdiction | Federal Court Sydney

Misleading representations

MSY Technology Pty Ltd

commenced | 1 December 2016

jurisdiction | Federal Court Sydney

Consumer online

Meriton Property Services Pty Ltd

commenced | 24 November 2016

jurisdiction | Federal Court Melbourne

Franchising

Morild Pty Ltd

commenced | 21 September 2016

jurisdiction | Federal Court Perth

Unconscionable conduct in dairy industry

Murray Goulburn Cooperative Co. Ltd

commenced | 28 April 2017

jurisdiction | Federal Court Melbourne

Misleading representations

NIB Health Funds Ltd

commenced | 30 May 2017

jurisdiction | Federal Court Melbourne

Credence claims

Pental Limited & Pental Products Pty Ltd

commenced | 12 December 2016

jurisdiction | Federal Court Sydney

Vulnerable and disadvantaged

Swishette Pty Ltd and Letore Pty Ltd

(part of the Clinica Internationale case)

commenced | 30 March 2017

jurisdiction | Federal Court Melbourne

Product safety

Thermomix In Australia Pty Ltd

commenced | 16 June 2017

jurisdiction | Federal Court Melbourne

False and misleading health and medical

The Joystick Company Pty Ltd

commenced | 9 September 2016

jurisdiction | Federal Court Melbourne

Industry codes

Ultra Tune Australia Pty Ltd

commenced | 19 May 2017

jurisdiction | Federal Court Sydney

Car retailing

Volkswagen Aktiengesellschaft and Volkswagen Group Australia Pty Ltd

commenced | 31 August 2016

jurisdiction | Federal Court Sydney

Other proceedings

Non-compliance with statutory notice— Contempt of court

Dhruv Chopra

commenced | 4 November 2016

concluded | 28 June 2017

jurisdiction | Federal Court Melbourne

outcome | Mr Chopra sentenced to imprisonment for three months (one month to be served immediately and balance suspended on conditions set by court, payment of ACCC costs.

Non-compliance with statutory notice—Contempt of court

Laurence Glynn Hann

commenced | 15 December 2015

concluded | 17 May 2017

jurisdiction | Federal Court Melbourne

outcome | Mr Hann sentenced to imprisonment for a period of five months and ordered to pay the ACCC’s cost on an indemnity basis.

Vulnerable consumers

NRM Corporation Pty Ltd, NRM Trading Pty Ltd t/a Advanced Medical Institute Pty Ltd

commenced | 20 August 2015

concluded | 2 December 2016

jurisdiction | Federal Court Melbourne

outcome | NRM companies found guilty of contempt fined $350 000.

Public warning notices

There was one public warning notice issued in 2016−17 in relation to Lux International Sales ApS.

Disqualification orders

There was one disqualification order issued during 2016−17.

James Harrison

   

The ACCC alleged that 11 corporations trading as SoleNet and Sure Telecom (the Harrison Companies) and their director James Harrison engaged in unconscionable conduct in the supply of telecommunications services and undue harassment, in breach of the ACL.

commenced

concluded

jurisdiction

outcome

4 April 2016

2 March 2017

Federal Court Melbourne

Disqualified from managing a corporation for a period of three years.

Administrative resolutions 2016–17

Anti-competitive agreements and practices

Expedia Inc. (includes Expedia.com, Wotif.com, Hotels.com)

Priceline Group (Booking.com)

2 September 2016

Medical and health

EBOS Group Ltd, on behalf of its subsidiary Symbion Pty Ltd, the owner of the Chemmart pharmacy franchise

12 September 2016

Medical and health

IVF Clinics

14 November 2016

Drip pricing online disclosure issues

Virgin Australia Airways Pty Ltd

1 December 2016

Drip pricing online disclosure issues

Jetstar Airways Pty Ltd

2 December 2016

Drip pricing online disclosure issues

Tigerair Australia

2 December 2016

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

Litigation concluded during 2016–17

Communications –

judicial review

Telstra Corporation Limited ACN 051 775 556 v Australian Competition and Consumer Commission & Ors

commenced | 5 November 2015

concluded | 28 March 2017

jurisdiction | Federal Court

outcome | Court dismissed Telstra’s application for judicial review on all grounds, finding that the ACCC had not made a reviewable error in its Final Access Determination for Fixed Line Services.

Litigation commenced in 2016–17

Communications—judicial review

Vodafone Hutchison Australia v Australian Competition and Consumer Commission under the ADJR Act

commenced | 2 June 2017

jurisdiction | Federal Court Sydney

Judicial review of the ACCC’s draft decision to not declare the domestic mobile roaming service and the ACCC’s conduct in holding a public inquiry.

First case management hearing was held on 30 June 2017. Hearing is scheduled for 27 and 28 September 2017.

AER

Litigation continuing at the end of 2016−17

Judicial review of Australian Competition Tribunal decision in relation to AER electricity distribution determinations and gas distribution access arrangement

Ausgrid

Endeavour Energy

Essential Energy

ActewAGL Distribution

Jemena Gas Networks (NSW)

commenced | 24 March 2016

jurisdiction | Full Federal Court

On 24 May 2017 the Full Federal Court handed down its judgment on these matters.

As at 30 June, the AER is considering the judgment, next steps and any implications for these and other network revenue determinations.

Judicial review of AER gas distribution access arrangement

Jemena Gas Networks (NSW)

commenced | 1 July 2015

jurisdiction | Federal Court

Judicial review of this decision was sought in addition to an application for merits review.

The matter has been stayed pending completion of the Full Federal Court’s decision in relation to the AER’s application for judicial review of the Australian Competition Tribunal decision.

Judicial review of AER electricity distribution determinations

Ausgrid

Endeavour Energy

Essential Energy

ActewAGL Distribution

commenced | 28 May 2015

jurisdiction | Federal Court

Judicial review of these decisions was sought in addition to applications for merits review.

These matters have been stayed pending completion of the Full Federal Court’s decision in relation to the AER’s application for judicial review of the Australian Competition Tribunal decisions.

Judicial review of Australian Competition Tribunal decision in relation to AER electricity distribution determination

SA Power Networks

commenced | 25 November 2016

jurisdiction | Full Federal Court

The Full Federal Court heard this matter in May 2017. The Court has reserved its judgment.

Judicial review of AER electricity distribution determination

SA Power Networks

commenced | 22 July 2016

jurisdiction | Federal Court

Judicial review of this decision was sought in addition to applications for merits review.

The matter has been stayed pending completion of the Full Federal Court’s decision in relation to the AER’s application for judicial review of the Australian Competition Tribunal decisions.

Judicial review of AER electricity distribution determinations

CitiPower

Powercor

United Energy

Jemena

AusNet Services

commenced | 22 June 2016

jurisdiction | Federal Court

Judicial review of these decisions was sought in addition to applications for merits review.

The matter has been stayed pending completion of the Full Federal Court’s decision in relation to the AER’s application for judicial review of the Australian Competition Tribunal decisions.

Judicial review of AER gas distribution access arrangement

ActewAGL Distribution

commenced | 22 June 2016

jurisdiction | Federal Court

Judicial review of this decision was sought in addition to an application for merits review.

The matter has been stayed pending completion of the Full Federal Court’s decision in relation to the AER’s application for judicial review of the Australian Competition Tribunal decisions.

Judicial review of AER electricity transmission determination

AusNet Transmission Services

commenced | 18 May 2017

jurisdiction | Federal Court

Judicial review of this decision was sought in addition to the application for merits review.

The matter has been stayed pending completion of the Full Federal Court’s decision in relation to the AER’s application for judicial review of the Australian Competition Tribunal decisions.

Australian Competition Tribunal matters

The merits review hearings in relation to SA PowerNetworks concluded on 5 August 2016. The Tribunal handed down its decisions on 28 October 2016.

Applications for leave and review of AER electricity distribution determinations in relation to CitiPower, Powercor, United Energy, Jemena and AusNet Services were lodged on 17 June 2016. The merits review hearings concluded on 25 November 2016. The Tribunal has extended the time for making a decision until 27 October 2017.

An application for leave and review of the AER gas distribution access arrangement in relation to ActewAGL Distribution was lodged on 17 June 2016. The merits review hearings concluded on 25 November 2016. The Tribunal has extended the time for making a decision until  27 October  2017.

An application for leave and review of the AER’s electricity transmission determination in relation to AusNet Transmission Services was lodged on 18 May 2017.