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Competition & Consumer Law

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 & Consumer Law

Competition and consumer law has widespread application to commercial transactions and disputes and must be considered whenever commercial transactions are being planned and implemented.

Expertise

Consumer protection, misleading and deceptive conduct, and unfair contracts

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. 

Competition law and restrictive trade practices

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.

Unconscionable conduct

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. 

Commercial disputes

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

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

Access to essential facilities

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.

Informal clearances and enforceable undertakings

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

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.

Compliance programs

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.

ACCC Investigations

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.

Experience

Regulatory compliance, including corporations law, copyright, privacy and competition law.


Dan Pearce

Dan Pearce

Partner

Melbourne

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Trent Taylor

Trent Taylor

Partner

Brisbane

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William Khong

William Khong

Partner

Melbourne

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Ian Robertson AO

Ian Robertson AO

National Managing Partner

Sydney

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Greg Wrobel

Greg Wrobel

Partner

Sydney

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Toby Boys

Toby Boys

Partner

Brisbane

More info
Paul Venus

Paul Venus

Managing Partner

Brisbane

More info
Nathan Cecil

Nathan Cecil

Partner

Sydney

More info

Recent Posts

20 May 2019 - Knowledge

Heavy penalties for Consumer Law breach: ACCC v We Buy Houses

#Competition & Consumer Law

A recent $12 million fine for misleading and deceptive conduct marks a record increase in penalties under Australian Consumer Law.

14 May 2019 - Knowledge

Inside track: Competition & Consumer Law

#Competition & Consumer Law

Plant-based products are flying off the shelves in Australia but there are concerns that labels could be blurring the lines for consumers. But while it sounds innocent enough it seems, Seafood Industry Australia Chief executive Jane Lovell claims the labelling is teetering on being false and misleading.

30 April 2019 - Knowledge

Inside track: Competition & Consumer Law

#Competition & Consumer Law

The ACCC took the company to court for its practices when selling tickets to music, sport and theatre events, which have been the subject of customer complaints, industry backlash and court action overseas.

16 April 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The regulator singled out providers like AIG, Suncorp, Allianz and QBE Insurance for past unfair conduct. Enforcement actions subsequently taken by ASIC led to more than $100 million being recovered for consumers from a number of insurers. However, the Australian Law Action Centre (ALAC) claims Australians could still be owed more than $1 billion in oversold, misleading or unsuitable add-on insurances forcibly sold over the last 10 years

02 April 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The regulator singled out providers like AIG, Suncorp, Allianz and QBE Insurance for past unfair conduct. Enforcement actions subsequently taken by ASIC led to more than $100 million being recovered for consumers from a number of insurers. However, the Australian Law Action Centre (ALAC) claims Australians could still be owed more than $1 billion in oversold, misleading or unsuitable add-on insurances forcibly sold over the last 10 years

19 March 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

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

Intellectual property exemption from competition laws repeal looms

#Intellectual Property, #Competition & Consumer Law

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

Inside track: Competition and Consumer Law

#Competition & Consumer Law

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 beware: Multimillion dollar penalty for Ultra Tune

#Competition & Consumer Law

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

Inside track: Competition and Consumer Law

#Competition & Consumer Law

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

Inside track: Competition and Consumer Law

#Competition & Consumer Law

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

ACCC moves to approve tobacco-free certification trademark

#Competition & Consumer Law, #Intellectual Property

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.