Competition and Consumer Law Update: Fair and Square: CCL ‘Roundup’ (2025/2025, Q2 & Q3)

On 6 November 2024, the High Court allowed appeals in two class actions concerning the calculation of damages arising from breaches of the acceptable quality guarantee provided by s 54(1) of the Australian Consumer Law due to defects in Toyota’s diesel exhaust system and Ford’s transmission:

• Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38;
• Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39.

The key issue was how damages were to be assessed under s 272(1)(a), which provides for recovery of damages from a manufacturer for reduction in value of goods where there has been a failure to comply with a consumer guarantee, in circumstances where a means of repairing a defect was developed after the time of supply.

Gageler CJ, Gordon, Steward, Gleeson and Beech-Jones JJ (Edelman J generally agreeing at [91]) held that:

• s 272(1)(a) provides for damages for “reduction in the value of goods”; it does not import any additional requirement of loss or damage but rather provides its own measure of damages: Williams [51].
• the assessment is directed to the time the goods were supplied to the consumer: Williams [55].
• it is appropriate to account for “the known information as to the availability of a fix at the time of trial to reach a conclusion as to the reduction in value”, at the time of supply. It is necessary to take into account how long after the supply the fix would become “practically available” and the inconvenience and cost to the hypothetical reasonable consumer in the meantime (with any additional particular cost and inconvenience in fact experienced by an individual consumer potentially recoverable under s 272(1)(b)): Williams [61].
• it is irrelevant whether the consequences of the hidden defect actually materialised (except insofar as it demonstrates the propensity for the consequences to materialise at the time of supply): Williams [64].
• the entitlement to damages under s 272(1)(a) runs with the title or ownership of the goods (meaning that a person who has disposed of the goods by the time of judgment is not eligible to recover), but entitlement to recover for loss and damage under s 272(1)(b) is not tied to title or ownership: Williams [71].

Federal Court dismisses misuse of market power class action against Stanwell and CS Energy

On 4 December 2024, the Federal Court dismissed a class action brought on behalf of consumers of electricity in the Queensland region of the National Electricity Market (QRNEM) against two State-owned generators for alleged contraventions of the former s 46 of the Competition and Consumer Act 2010 (Cth) (CCA) (Stillwater Pastoral Company Pty Ltd v Stanwell Corporation Ltd [2024] FCA 1382).

The Applicants alleged that Stanwell and CS Energy had taken advantage of their substantial market power by manufacturing spikes in wholesale electricity prices in the QRNEM through the submission of ‘rebids’ at high prices shortly before the closure of the bidding window (referred to as ‘Short-notice Rebidding’).

The decision turned on whether the evidence established that the Respondents had substantial market power: [224]. Justice Derrington held that, despite being the largest generators in the QRNEM with significant market shares, neither Stanwell nor CS Energy had a substantial degree of power in the market for the wholesale supply of electricity to the QRNEM:

• Stanwell and CS Energy had no greater ability than any other generator to influence dispatch of electricity and all generators in the market were constrained in one way or another by their contract positions: [288].
• the statistical insignificance of the occasions on which it was alleged that Stanwell and/or CS Energy were successful in spiking prices and the overwhelming evidence that price spikes were transient in nature was incapable of supporting an inference that Stanwell or CS Energy had substantial market power during the relevant period: [300].
• Stanwell and CS Energy were not ‘related’ within the meaning of s 4A of the CCA and, given neither had substantial market power, they could not have substantial market power individually or together by reason of the former s 46(2) of the CCA: [342]-[345].

While the absence of substantial market power was fatal to the action, Derrington J also concluded that neither Stanwell nor CS Energy had in fact engaged in ‘Short-notice Rebidding’: [712].

ACCC’s 2025/26 priorities

On 20 February 2025, ACCC Chair Gina Cass-Gottlieb addressed the Committee for Economic Development Australia on the ACCC’s compliance and enforcement priorities for 2025-26, including:

• Competition in priority areas:
  • Aviation: Qantas and Virgin controlling more that 90% of the market following the collapse of Bonza and the withdrawal of Rex from metropolitan routes in 2024 (see the November 2024 report onDomestic airline competition in Australia);
  • Supermarket and retail sectors: the Government has allocated $30m to the ACCC to address competition and consumer issues in these sectors (see Supermarkets inquiry August 2024 interim report).
  • Essential services: promoting competition in the telecommunications and energy sectors.
  • Digital economy: working towards implementing the proposed digital competition regime (see A new digital competition regime – Proposal Paper).

• Merger reform: Australia’s new merger regime will come into effect from 1 January 2026, with voluntary notification from 1 July 2025. It will be a mandatory, administrative regime, in contrast to the current voluntary, judicial enforcement model (see Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024).
• Misuse of market power and cartels: numerous proceedings, including against Ventia and Spotless in relation to alleged price fixing.
• Consumer and industry codes enforcement: this financial year the ACCC has launched 8 proceedings and obtained penalties in others, while also focussing on code compliance.
• Consumer, fair trading and product safety: including misleading pricing practices and online advertising, harmful cancellation terms, compliance by NDIS providers, consumer guarantees and product safety for children.
• Environmental claims and sustainability: targeting misleading environmental claims (see also the December 2024 guide on Sustainability collaborations and Australian competition law).
• Misleading surcharging practices and add-ons: increasing business compliance with the excessive card payment surcharging prohibition and improving pricing practices to ensure disclosure of add-on costs.
• continuing to advocate for a prohibition on unfair trading practices.