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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

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Paul Venus

Paul Venus

Managing Partner

Brisbane

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Nathan Cecil

Nathan Cecil

Partner

Sydney

More info

Recent Posts

13 November 2018 - Knowledge

ASIC’s new approach to regulation by embedding supervisory staff in banks

#Competition & Consumer Law

ASIC chairman James Shipton announced plans to embed teams of up to 20 ASIC agents for weeks at a time to sit with bank staff, drop into meetings and trail the CEO, executives and directors to identify misconduct before it arises.

13 November 2018 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The ACCC has instituted Federal Court proceedings against Productivity Partners Pty Ltd, trading as Captain Cook College, alleging systemic unconscionable conduct in breach of the Australian Consumer Law, designed to maximise profit at the expense of their students.

29 October 2018 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

The Coalition Government has extended Mr Rod Sims' term as Chairman of the Australian Competition and Consumer Commission (ACCC).

15 October 2018 - Knowledge

Inside track: Competition and Consumer Law

#Competition & Consumer Law

NSW Fair Trading has successfully obtained an interim injunction in the NSW Supreme Court against Digital Marketing and Solutions Pty Ltd, and its sole director Mr Yuen Ho Wong, which prevents him from selling prohibited goods such as counterfeit mobile phone chargers, or misleading consumers by advertising that products are in stock when in fact, they aren’t.

03 October 2018 - Knowledge

Equifax ordered to pay $3.5 million for breach of consumer law

#Competition & Consumer Law, #Data & Privacy

Equifax has been ordered to pay $3.5 million by the Federal Court for misleading and deceptive and unconscionable conduct in relation to its credit reporting services.

02 October 2018 - Knowledge

What's News in Competition & Consumer Law? – 2 October 2018

#Competition & Consumer Law

Electricity and gas customers will receive at least five days notice of price increases so they can consider switching to other providers, under changes to national energy rules.

25 September 2018 - Knowledge

Refund policies punted: ACCC investigation forces AFL/ NRL clubs to re-think returns on merchandise

#Competition & Consumer Law

As 21 AFL and NRL clubs revise their refunds and returns policies, the ACCC gives broader insight into what restrictions are considered to be inconsistent with consumer rights.

19 September 2018 - Knowledge

What's News in Competition & Consumer Law? – 19 September 2018

#Competition & Consumer Law

The banking royal commission has revealed the corporate regulator gave the Commonwealth Bank's insurance arm the chance to change a media release and negotiate the consequences of misleading advertising.

04 September 2018 - Knowledge

What's News in Competition & Consumer Law? – 4 September 2018

#Competition & Consumer Law

Unfair contract terms, misleading conduct and scams are some of the biggest issues affecting small businesses in Australia, according to the ACCC’s latest Small Business in Focus report.

29 August 2018 - Knowledge

No merit in manipulating TripAdvisor reviews: $3 million fine issued by court

#Competition & Consumer Law

The $3 million fine issued to Meriton this month by the Federal Court might be a wake-up call to other businesses to consider their management and interaction with online review websites.

21 August 2018 - Knowledge

What's News in Competition & Consumer Law? – 21 August 2018

#Competition & Consumer Law

First financial penalty under 2017 Horticulture Code: A Sydney fruit and vegetable wholesaler is the first business to pay a $10,500 infringement notice for an alleged breach of the Horticulture Code...

08 August 2018 - Knowledge

What's News in Competition & Consumer Law? – 8 August 2018

#Competition & Consumer Law

Australia’s four biggest banks have used their dominant position to exploit customers, deliver inferior products, charge exorbitant fees and block competition, according to a new government report calling for more competition and integrity in the industry.