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Key decisions

  • Flight Centre Limited v Australian Competition and Consumer Commission [2015] FCAFC 104
  • Australian Competition and Consumer Commission v ANZ Banking Group Ltd [2015] FCAFC 103
  • Centennial Northern Mining Services Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCAFC 100
  • National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98
  • Gnych v Polish Club Limited [2015] HCA 23

Competition law

Whether airline and travel agents compete in distribution market

In Flight Centre Limited v Australian Competition and Consumer Commission [2015] FCAFC 104 (31 July 2015) a Full Court in a joint judgment found the primary judge had erred in finding that the appellant travel agent and the international airline (who sold seats directly and via travel agents) whose products it sold competed contrary to ss 45 and 45A of the Trade Practices Act 1974 (Cth) in a market for booking and distribution services for international airline travel.

Competition law

Market – whether bank in same market as mortgage brokers

In Australian Competition and Consumer Commission v ANZ Banking Group Ltd [2015] FCAFC 103 (31 July 2015) a Full Court concluded that by providing mortgage finance through its branch system the ANZ bank was not in the same market as mortgage brokers.

The bank’s complaints to one of its agents about commission sharing with customers was not an ‘agreement controlling a discount or rebate’ for s 45A of the Trade Practices Act 1974 (Cth).

Industrial law

Calculation of untaken long service leave

In Centennial Northern Mining Services Pty Ltd v Construction Forestry Mining and Energy Union [2015] FCAFC 100 (23 July 2015) a Full Court considered how untaken accrued leave was to be calculated for s 90(2) of the Fair Work Act 2009 (Cth).

Industrial law

Enterprise agreement – approval by vote of all employees ‘employed at the time’ – sessional employees

In National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (17 July 2015) a Full Court found the Full Bench of the Commission had made a jurisdictional error in failing to make enquiries that would exclude sessional employees from voting on approval of an enterprise agreement under s 181 of the Fair Work Act 2009 (Cth).

Contract

Lease – contrary to statute – effect of illegality – Statutes – illegality

In Gnych v Polish Club Limited [2015] HCA 23 (17 June 2015) the Club leased certain parts of its premises (that were licensed to serve alcohol under the Liquor Act 2007 (NSW)) to Gnych. Such a lease without the approval of the Authority was prohibited by s 92(1) of the Act. A dispute arose and Gnych was excluded from the premises. In response to Gnych’s claims for enforcement of the lease, the Club asserted that because the lease had not been approved under s 92(1)(d) of the Act, the lease was illegal and void.

This was generally rejected by the trial judge but accepted by the NSW Court of Appeal. Gnych’s appeal to the High Court was allowed by all members: French CJ, Kiefel, Keane, Nettle JJ jointly; sim Gageler J. Consideration of when contracts are void for illegality. Appeal allowed.