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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.

For an expert guide on Australian merger analysis , read our chapter published in the Mondaq Comparative Guide to Merger Control here.

Recent Posts

11 May 2021 - Knowledge

Misuse of market power – the first outcome for ‘likely effect’

#Competition & Consumer Law, #Transport, Shipping & Logistics

In the first finding of a contravention of section 46 of the Competition and Consumer Act 2010 since its significant amendments, we consider the significance of the consent orders agreed between Tasmanian Ports Corporation Pty Ltd and the ACCC which declared that the port operator had engaged in conduct that had the ‘likely effect’ of substantially lessening competition in the market.

10 May 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

A solar panel retailer which made misleading representations to consumers, failed to comply with legal protections for unsolicited consumer agreements and engaged in unconscionable conduct, among other breaches of the Australian Consumer Law, has been fined $3 million in the Federal Court, and its Director ordered to pay $450,000.

28 April 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

A law firm in Australia is preparing a fresh class action claim against Mesoblast that alleges misleading or deceptive conduct to investors and breaches of continuous disclosure in the way in which the biotech promoted the prospects of its main product candidate, Remestemce.

13 April 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The Full Federal Court dismissed an appeal by Volkswagen AG against the penalties handed down earlier for making false representations about compliance with Australian diesel emissions standards.

31 March 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The Federal Court has ordered telecommunications provider Superfone to pay $300,000 in penalties for making false and misleading representations and breaching laws designed to protect consumers from unsolicited telemarketing sales, in proceedings brought by the ACCC.

17 March 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The Federal Court of Australia has rejected legal proceedings brought by Freedom Foods Group against Blue Diamond Growers and ruled the remaining proceedings must head to arbitration in the US.

03 March 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

Regional Express says it plans to terminate several NSW services as well as its Adelaide-King Island route after government subsidies end in March.

01 March 2021 - Knowledge

ACCC compliance and enforcement priorities for 2021 – the impact on your piece of the economic pie

#Competition & Consumer Law

The ACCC has recently announced their compliance and enforcement priorities for 2021. We look at what the announcement entails and highlight the ACCC’s regulatory goals for the year.

16 February 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

Mr Leyonhjelm was directed to cease advertising a prescription medicine for the treatment of Covid-19, and making claims or representations in advertisements for any therapeutic goods that those goods have any effect on COVID-19 (including that said therapeutic goods are capable of preventing, treating or alleviating COVID-19)

02 February 2021 - Knowledge

A cautionary tale for franchisors: The risk of financial disclosures and guaranteed franchisee income

#Corporate & Commercial Law, #Competition & Consumer Law

We explain the legal issues franchisors face when sharing financial information with their franchisees, and consider strategies to minimise risks associated with guaranteed earnings in a franchise offer.

02 February 2021 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The TGA has issued eight infringement notices totalling $106,560 to Sydney-based company Life Biotech Pty Ltd for allegedly failing to provide information and face mask samples to the TGA when required to do so, and for providing false and misleading information.

20 January 2021 - Knowledge

New consumer disclosure obligations for NSW suppliers – enforcement starts now

#Competition & Consumer Law

NSW suppliers are now required to notify consumers of any prejudicial contract terms or referral arrangements before providing goods or services to them.