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Time to play fair! Unfair contract terms regime extended to small businesses - Dec 2015

Long gone are the days of “the contract is the contract”. Whilst many of us have always taken a “balanced” and “plain English” approach to drafting contracts, the Government has decided that there is a need to introduce laws to now make sure that businesses take this approach, as Partner Andrea Pane and Lawyer, Thomas Patereskos explain.

‘Free range’ egg claims on the boil - Dec 2015

On 14 September 2015, the Federal Court found RL Adams Pty Ltd (trading as Darling Downs Fresh Eggs) guilty of engaging in misleading conduct and making misleading representations by marketing its products as free range eggs when they were not. Partner, Anne Freeman and Law Clerk, David Derbyshire review the decision, which is one of the latest in a recent string of cases that the ACCC has successfully prosecuted against primary producers in an effort by the regulator to put a stop to the use of false credence claims in the Australian market place. 

ACCC v Dateline Imports Pty Ltd: Make sure you have reasonable grounds, even if it is true! - Oct 2015

There is increasing focus on manufacturers to show they have reasonable grounds to make representations to consumers about ingredients in their products. Manufacturers must ensure testing of products support any representations made in respect of those ingredients. If manufacturers do not hold reasonable grounds for making certain representations about ingredients in a product, it could constitute misleading and deceptive conduct. This is the case even where those representations turn out to be true. Senior Associate, Valerie Blacker and Lawyer, Kelly Fraser examine the recent case of ACCC v Dateline Imports Pty Ltd which illustrates the difficulty in making representations about complex chemical products where experts disagree on the existence of harmful ingredients and sophisticated testing methods cannot conclusively rule out the existence of such chemicals.

Flight Centre v ACCC: thought-crimes and legal fiction - Oct 2015

The ACCC’s loss of appeals in two cases against intermediaries for price fixing (Flight Centre and ANZ/Mortgage Refunds) appears to resolve two conflicting first instance decisions of the Federal Court of Australia. The Full Court was highly critical of the ACCC’s economic arguments, going so far as to suggest that markets are not a feature of the real world but are intellectual constructs devised by economists, and that the Court will decide cases based on its own view of commercial reality. Consultant, George Raitt considers what guidance may be drawn from the decisions for commercial arrangements between suppliers of goods and services and intermediaries such as agents and re-sellers.

L’Oréal’s quest for preliminary discovery was “worth it” - Oct 2015

Earlier this month, Justice Beach in the Federal Court handed down orders for preliminary discovery for L’Oréal Australia Pty Ltd against BrandPoint Pty Ltd. The discovery relates to a prospective claim for misleading or deceptive conduct or false representations. Such conduct or representations were said by L’Oréal to be embodied in an email sent by BrandPoint marketing its PuraSonic “sonic facial cleansing brush”, a direct competitor to L’Oréal’s own Clarisonic range. Partner, James Lawrence and Law Clerk, Robert Guzowski review the decision.

Consequences of not “fixing” a price for a “fixed” term energy contract - Jun 2015

In December 2014, Justice White of the Federal Court made a finding that AGL South Australia Pty Ltd made false or misleading representations and engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law (ACL). In late April 2015, his Honour delivered his judgment and made orders on the penalty to be awarded against AGL SA. Associate, Tania Maystrenko reviews the decision.

Sellers Beware – Price List Increase misrepresentations result in $520,000 pecuniary penalty - Jun 2015

In April, the ACCC successfully obtained orders, including an injunction, the payment of pecuniary penalties, the publishing of a notice in The Australian newspaper, and the establishment of a compliance program against Actrol Parts Pty Limited (Actrol) in relation to representations made by Actrol when notifying customers of price increases. Partner, Anne Freeman reviews the decision.

Which “effects test” for section 46: Europe, USA, or Australia? - May 2015

The Competition Policy Review’s final report delivered in March 2015 recommends that section 46 should be amended to introduce an “effects” test in line with overseas jurisdictions, and abandons the earlier draft recommendation of a new defence for conduct that is in the long-term interests of consumers.  The final report acknowledges in an appendix that corresponding provisions in the USA and Europe differ regarding “effects” of unilateral dominant firm conduct. Consultant, George Raitt discusses the differing approaches in the USA and Europe, and whether the recommended changes for Australia bring us closer to the USA or Europe, or further away from both.

A new Food and Grocery Code – will supermarket heavyweights agree to be bound or will they go off their trolley? - May 2015

Lawyer, Dina Shehata, discusses the commencement of a new regulatory framework for dealings between retailers or wholesalers and suppliers in the food and grocery sector.

Forrest not so silly? Predatory pricing after the Competition Policy Review - May 2015

Furore broke out recently when Andrew Forrest suggested that Australian iron ore producers should cut production to address oversupply and falling prices. It was reported that larger Australian producers had flooded the market and that some smaller Australian producers are in financial difficulties due to falling prices. Apart from demonstrating textbook damage control by Fortescue Metals, the episode provides a useful case study to consider how the recommendations of the Competition Policy Review’s final report will change that application of section 46 to predatory pricing (and cartel conduct). Consultant, George Raitt discusses the impact of the proposed “effects test” on predatory pricing.

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