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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.


William Khong

William Khong

Partner

Melbourne

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Dan Pearce

Dan Pearce

General Counsel

Melbourne

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Nathan Cecil

Nathan Cecil

Partner

Sydney

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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

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Trent Taylor

Trent Taylor

Partner

Brisbane

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Paul Venus

Paul Venus

Managing Partner

Brisbane

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Recent Posts

15 October 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The Federal Court of Australia has ruled in favour of TPG Telecom in a lawsuit filed by the Australian Competition and Consumer Commission (ACCC) over misleading conduct claims related to a “prepayment” charge. Justice David O'Callaghan ruled that the telco did not unfairly charge customers a non-refundable bond.

01 October 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

Southern Response is still pondering whether to appeal the High Court’s decision on its “deceptive conduct” – and it seems that it wants the claimants to avoid having to pay a portion of any settlement to the litigation funder, Claims Funding Australia.

16 September 2019 - Knowledge

Inside track: Competition & Consumer Law

#Competition & Consumer Law

The ACCC has accepted a court-enforceable undertaking from telco provider BVivid Pty Ltd (BVivid) for making telemarketing calls to consumers in areas transitioning to the NBN that BVivid has admitted likely breached the Australian Consumer Law (ACL).

04 September 2019 - Knowledge

Avoiding ‘Fyre’: Eight key legal issues in running a festival or event

#Competition & Consumer Law, #Intellectual Property, #Corporate & Commercial Law, #Technology, Media & Telecommunications

Running events is not just the domain of music or arts festival organisers. Most businesses will from time to time run conferences, networking and other events. This article provides a checklist of the top issues for consideration.

03 September 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The ACCC has instituted civil proceedings in the Federal Court against BlueScope Steel Limited (BlueScope) and its former general manager sales and marketing, Mr Jason Ellis, for alleged cartel conduct in relation to the supply of flat steel products with agreements containing a price fixing provision.

27 August 2019 - Knowledge

IP contracts must clear new competition hurdles

#Competition & Consumer Law, #Intellectual Property

There are only weeks left before important changes to the long-standing intellectual property exemption from restrictive trade practices come into effect. The latest update from the ACCC outlines the red flags to consider now.

19 August 2019 - Knowledge

HealthEngine: The intersection of privacy and consumer protection

#Competition & Consumer Law, #Data & Privacy

The Australian Competition & Consumer Commission has announced that it had commenced legal proceedings in the Federal Court against the online platform, HealthEngine Pty Ltd alleging that a number of its practices constitute misleading and deceptive conduct in breach of the Australian Consumer Law.

19 August 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The most common problems cited in the survey are "inappropriate but not illegal" issues such as high fees, being offered credit cards or increases to credit limits when not requested, poor or misleading information and being charged for services that were never received.

06 August 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The Federal Court found K-Line engaged in a cartel with other shipping companies in order to fix prices on the transportation of cars, trucks, and buses to Australia between 2009 and 2012. K-Line’s fine of $34.5 million is the largest ever criminal fine imposed under the Competition and Consumer Act.

30 July 2019 - Knowledge

Watchdog to clamp down on digital giants

#Competition & Consumer Law, #Corporate & Commercial Law, #Technology, Media & Telecommunications

Australia’s consumer watchdog has called on the Federal Government to rein in the significant market power of digital media giants, Google and Facebook in its Digital Platforms Inquiry final report released on 26 July 2019.

23 July 2019 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

Allegedly, Estia's conduct caused its share price to trade at a price substantially higher price than what would have prevailed in a properly informed market and engaged in misleading and deceptive conduct by maintaining its optimistic guidance without any qualification or reasonable grounds.

09 July 2019 - Knowledge

Inside track: Competition & Consumer Law

#Competition & Consumer Law

The ACCC has instituted proceedings in the Federal Court against Samsung Electronics Australia Pty Ltd (Samsung) alleging it made false, misleading and deceptive representations in advertising the water resistance of various ‘Galaxy’ branded mobile phones.