In Touch: new motor vehicle service and repair information laws speed through Parliament; and other developments

The latest in competition and consumer law 5 min read

Grape Co's representations leave bad taste in ACCC's mouth

Grape Co Australia Pty Ltd and Grape Co Farms Pty Ltd (together, Grape Co), traders of table grapes, have paid $34,920 in penalties to the ACCC, following allegations they made false or misleading representations, and failed to comply with the Horticulture Code of Conduct.

The ACCC alleged that Grape Co falsely represented that all of its grapes are grown on the Grape Co Australia family estate, by publishing a statement on its website that 'Every single one of our grapes is personally hand-selected from the finest fruit on our family’s estate in Sunraysia Australia'. In addition to paying a penalty, Grape Co has amended its website.

The ACCC separately alleged that Grape Co contravened the mandatory Horticulture code, an industry code under the Competition and Consumer Act 2010 (Cth) (the CCA). The ACCC alleged that while Grape Co acted as an agent for grape growers, it traded without written Horticulture Produce Agreements, and failed to prepare and publish its terms of trade. Grape Co has, additionally, amended terms in its standard form agreements, following ACCC concerns that some were likely to be unfair contract terms.

New motor vehicle service and repair information laws speed through Parliament

Following concerns expressed by the ACCC in its 2017 new car retailing industry market study, amendments to the CCA passed through Federal Parliament on 17 June 2021.

The amendments to the CCA require car manufacturers to provide independent repairers with information needed to repair and service cars (eg software updates and codes for computerised systems within a car) at fair market value. The Motor Vehicle Service and Repair Information Sharing Scheme is scheduled to come into effect on 1 July 2022.

A new industry-led body, the Scheme Adviser, will be established to resolve disputes arising under the scheme and distribute information about it. The ACCC will retain the power to enforce the legislation: eg by issuing infringement notices or commencing litigation against companies it alleges have contravened the amendments.

ACCC clears Dye & Durham's acquisition of GlobalX

The ACCC found that Dye & Durham's (operating in Australia through SAI Global) acquisition of GlobalX would not substantially lessen competition in the markets for information broker services provided to conveyancers, law firms, banks and other customers.

Dye & Durham is a global cloud-based software provider, which supplies information services, manual property settlement services and conveyancing software solutions to clients in Australia through its subsidiary SAI Global. GlobalX provides information search services, manual property settlement services and legal practice management software in Australia.

The ACCC considered that, though the parties overlapped in information brokerage services and conveyancing and property settlement services, the acquisition would not substantially lessen competition because the merged firm would be constrained by other market participants, including customers, and regulatory bodies such as state land titles offices.

ACCC studiously allows university competition law exemption to facilitate return of international students

The ACCC has granted NSW and ACT universities interim authorisation to collaborate regarding travel arrangements for the return of international students.

The NSW Government will pilot a scheme to bring 250 international students to Sydney per week during the second half of this year. The ACCC's interim authorisation provides that NSW and ACT universities will be exempt from the application of competition laws when determining how to allocate spots for international students under the pilot program.

The ACCC has made this exemption to allow NSW and ACT universities to effectively implement the NSW Government's pilot program.

ACCC snaps up penalties from digiDirect for misleading consumers about 'storewide' sales

digiDirect, an Australian retailer of electronic goods including photo and video equipment, has paid $39,240 in penalties for breaching the Australian Consumer Law (the ACL).

The ACCC alleged that digiDirect contravened the ACL on three occasions, by advertising sales as 'X% OFF STOREWIDE' when the discounts did not apply to all products in digiDirect's online store. These promotions were displayed on digiDirect's website, posted on social media and emailed to digiDirect subscribers. The ACCC alleged that 5–7% of digiDirect's products, including popular digital cameras, lenses and accessories, were excluded from the promotions.

The ACCC considered that digiDirect's storewide sale representations were misleading or deceptive in contravention of the ACL because they enticed consumers to a sale on the promise of discounts that may not apply. Each of the three promotions included the words 'terms and conditions apply' or 'terms and exclusions apply'; however, the ACCC considered that the 'storewide discount' representation was not capable of being qualified so that it was no longer misleading, even if the disclaimers had been more prominent.

ACCC will not oppose Woolworths' acquisition of 65% share in PFD

The ACCC has found that Woolworths' acquisition of 65% of shares in PFD Food Services, a wholesale food distributor, is unlikely to substantially lessen competition.

The ACCC examined the transaction from the perspective of its impact on food and grocery suppliers. It considered that Woolworths and PFD do not significantly compete in this market.

It formed this conclusion because, though Woolworths and PFD share approximately 350–400 common suppliers, they generally purchase different types of products. Woolworths mostly purchases retail products, and PFD predominately purchases larger-format products for on-supply to businesses. The ACCC reached its conclusion despite Woolworths' operation of Woolworths at Work, which supplies to commercial customers, and its operation of Australian Grocery Wholesalers, which provides wholesale food distribution primarily to one petrol and convenience chain (Ampol).

Woolworths had offered the ACCC a behavioural undertaking in relation to the transaction, which, it stated, would preserve the current market dynamics, to enable market participants to continue to do business with Woolworths and PFD independently. The ACCC ultimately considered that this undertaking was unnecessary to clear the transaction.