In competition and consumer law, as with all areas of our practice, we seek to devise strategic and practical solutions for our clients in the most cost-effective manner possible.
Competition and consumer law has widespread application to commercial transactions and disputes and must be considered whenever commercial transactions are being planned and implemented.
The provisions of the Australian Consumer Law are the cornerstone of Australian advertising and marketing law and also have extensive application to general commercial dealings and transactions. There are similar provisions in the State Fair Trading Acts.
Holding Redlich has a national practice advising advertising agencies and advertisers on the legal issues related to proposed advertisements and advertising campaigns. We advise on these legislative provisions (and other relevant issues such as copyright, trade promotions, and talent agreements) on a daily basis. We also provide training to our clients on advertising and marketing risks, including social media risks.
The Australian Consumer Law also prohibits unfair contract terms in standard form consumer contracts entered into by corporations and contracts which are financial products or relate to the supply of financial services. Under the unfair contracts provisions any term of a standard form consumer contract which is deemed to be “unfair” may be found to be void and treated as if it never existed.
Part IV of the Competition & Consumer Act (CCA) contains comprehensive provisions concerning horizontal and vertical restraints, mergers, market power, and resale price maintenance.
In addition, the ACCC operates a system of informal merger clearance for mergers and acquisitions which may substantially lessen competition.
Holding Redlich is experienced in advising on the application of these legislative provisions to proposed mergers and acquisitions, joint ventures and contractual arrangements. We are also experienced in making applications to the ACCC for informal clearance of mergers, as well as for authorisation by the ACCC of conduct which may be anti-competitive.
The Australian Consumer Law expands the common law of unconscionable conduct by introducing, in effect, a general duty to trade fairly in relation to consumers, and also in respect of certain business transactions.
These provisions have extensive application to consumer transactions as well as to some business to business transactions including many retail leases. Holding Redlich advises clients in a number of industries, including manufacturing, retailing, and commercial property on steps to ensure compliance with these legislative provisions. We also act for clients in disputes and litigation in which unconscionable conduct is alleged.
Aspects of competition and consumer law, particularly in respect of restrictive trade practices and misleading and deceptive conduct, frequently arise in commercial disputes. Holding Redlich’s litigators regularly conduct cases in the Australian courts at all levels involving competition and consumer law and principles.
In competition and consumer law, as with all areas of our practice, we seek to devise strategic and practical solutions for our clients in the most cost-effective manner possible. In doing so we utilise our extensive knowledge of the industries in which our clients operate and our specialist understanding of the applicable law.
Franchising in Australia is regulated by the Franchising Code of Conduct, made under Part IVB of the CCA. Other provisions of the CCA also have application to franchising arrangements. Holding Redlich is experienced in acting for both franchisors and franchisees in respect of the Code and related issues.
Our experience extends to drafting, negotiating and advising upon franchise agreements in a number of sectors including in respect of motor vehicle dealerships, convenience food outlets, and retailers. We also regularly represent franchisors and franchisees in disputes and litigation. Several Holding Redlich partners are accredited mediators with the Office of the Mediation Adviser which is the mediation scheme created under the Franchising Code of Conduct
Part IIIA of the CCA concerns the granting of access to essential facilities which are also ‘monopoly’ facilities such as pipelines, railways and ports. Part XIC of the CCA concerns access to telecommunications services.
Holding Redlich is frequently asked to advise our clients in the pipeline, mining, and stevedoring industries on the application of these provisions to their businesses and commercial activities.
The ACCC has the power to grant informal clearances of mergers which may otherwise contravene the merger provisions of the CCA. Often a clearance will only be provided by the ACCC after enforceable undertakings are provided by one or more parties to the proposed transaction.
Holding Redlich is experienced in seeking informal merger clearances from the ACCC and in drafting and advising upon enforceable undertakings, especially in respect of transactions in the media, communications, manufacturing and commercial property industries.
Restraints of trade in Australia are predominately regulated by the common law which, in essence, will not allow unreasonable restraints of trade to be enforced. Holding Redlich is experienced in drafting and advising upon restraints of trade in employment arrangements and in commercial transactions, and in enforcing and challenging restraints of trade in the Australian courts at all levels.
The penalties for infringing the provisions of the CCA and the Australian Consumer Law can be very substantial and most Australian businesses ensure that they comply with the law. Many businesses implement trade practices compliance programs for their staff and Holding Redlich is familiar with the drafting and implementing of such programs in a number of industries, including in retailing, media, and commercial property.
The ACCC has extensive powers to conduct investigations and enquiries and Holding Redlich is experienced in advising and assisting clients which may be subject to such activity by the ACCC. Our experience extends to drafting detailed submissions and representing clients in meetings with the ACCC.
Regulatory compliance, including corporations law, copyright, privacy and competition law.
19 March 2019 - Knowledge
The Federal Court has ordered penalties of $250,000 against internet provider Australian Private Networks Pty Ltd (trading as Activ8me) for making false or misleading representations and not displaying a single price when advertising its internet services. The Court has also ordered that Activ8me offer to refund setup fees and allow affected customers to exit or switch plans without charge
19 March 2019 - Knowledge
Businesses that assign or license intellectual property (IP) rights will soon have to comply with further competition laws under the Competition and Consumer Act 2010 (Act).
05 March 2019 - Knowledge
Retail chains Target Australia and Baby Bunting have together been fined just $63,000 for selling “unsafe” convertible baby strollers for years. Both businesses have admitted they likely “contravened the Australian Consumer Law” and marketed the products in “a manner which the ACCC considers was misleading”
27 February 2019 - Knowledge
Franchisors need to exercise a degree of care with the franchise sales process and comply at all times with the disclosure requirements of the Franchising Code of Conduct. Recently, the Federal Court has handed down a landmark decision against franchisor Ultra Tune for failure to comply with “minimum franchisor obligations”.
19 February 2019 - Knowledge
The Court held, by consent, that Cryosite engaged in cartel conduct when it signed an agreement in June 2017 to sell the assets of its private cord blood and tissue banking business to Cell Care with a clause requiring Cryosite to refer all customer enquiries to Cell Care before the sale was completed, and when it subsequently gave effect to that provision.
05 February 2019 - Knowledge
Australia's competition regulator is keeping an eye on bitcoin scams. In September, ASIC announced it had stopped several proposed ICOs aimed at retail investors for making deceptive statements and not holding financial services licences, among other issues. Treasury has now begun its own consultation process considering ICOs.
31 January 2019 - Knowledge
The ACCC has moved to allow an Australian-based charity to register certification trademarks that show that financial institutions’ and fund managers’ investments are tobacco-free.
22 January 2019 - Knowledge
The Federal Court has imposed a $2,604,000 penalty against Ultra Tune Australia Pty Ltd (Ultra Tune) for breaching both the Franchising Code of Conduct and the Australian Consumer Law (ACL). Justice Bromwich found that Ultra Tune had failed to act in good faith in breach of the Franchising Code, and had made false or misleading representations in breach of the ACL, in its dealings with a prospective franchisee.
12 December 2018 - Knowledge
#Corporate & Commercial Law, #Workplace Relations & Safety, #Data & Privacy, #Competition & Consumer Law, #Procurement, #Property & Real Estate, #Technology, Media & Communications, #Transport, Shipping & Logistics, #Construction & Infrastructure
As 2018 rapidly draws to a close, our practice group experts take a magnifying glass to the top issues from the year - and outline what they expect to dominate in 2019.
12 December 2018 - Knowledge
Businesses that assign or license intellectual property (IP) rights will soon have to consider extra competition laws under the Competition and Consumer Act 2010.
10 December 2018 - Knowledge
The Federal Court has ordered Landmark Operations Limited (trading as Seednet) to pay a $1 million penalty for making false, misleading and deceptive claims in a fact sheet for its barley variety known as ‘Compass’. “Seednet’s conduct was unacceptable because it misled farmers into sowing barley crops under a false impression about the qualities of the crops they were planting".
05 December 2018 - Knowledge
Planning to tick off a few long-intended tasks in the ‘quiet’ part of the new year? These latest actions give incentive for all businesses to review their standard form business to business contracts as an increasing priority.