Competition law

Explaining the Media Bargaining Code

On 18 February 2021, social media company Facebook made the decision to prohibit the publishing and sharing of links (Links) from Australian media companies (News Companies) on the site.  This ban came into effect almost immediately after the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Cth) (Media Bargaining Code) passed the House of Representatives.  The ban has roadblocked News Companies from 9 News to the Bureau of Meteorology and even the beloved satirical news provider, The Betoota Advocate.  This article analyses the proposals of the Media Bargaining Code and what the legal effect of non-compliance may be. [Read more…]

The tort of passing off

The tort of passing off occurs where one trader (Defendant) has wrongly represented that its goods or services are related to those of another (Plaintiff) by imitating the latters get-up, or look and feel of their product or service.[1]  A passing off action is designed to provide a remedy when this situation results in damage to the Plaintiff’s business reputation.  It is usually pleaded as an alternative cause of action to misleading and deceptive conduct pursuant to the Australian Consumer Law, contained inside schedule 2 of the Competition and Consumer Act 2010 (Cth).   [Read more…]

Changes to ACL – suppliers of services to use compulsory wording

On 9 June 2019, amendments to Schedule 2 of the Competition and Consumer Amendment (Australian Consumer Law Review) Regulations 2018 (Cth) (Amendments) came into effect.  The Amendments require suppliers of goods and services to use a mandatory wording if they provide a “warranty against defects”.  Mandatory wording of such warranties were previously required only for the supply of goods.  However, these changes extend the prescribed warranties to situations where there is a supply of services or a supply of both goods and services. [Read more…]

Director Identification Numbers – more red tape?

The Exposure Draft of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2018 (Exposure Draft) was released on 1 October 2018.   If enacted, the provisions contained in the Exposure Draft would amend the Corporations Act 2001 (Cth) and implement a regime including an identification number for directors and a single business register.  The Exposure Draft stems from the announcement made by the Federal Government in the 2018-2019 budget to “target organised crime and tax evasion” by implementing new measures.  Those measures include a new regime to “modernise the business registers program” and merge the Australian Business Register (ABR) with the Australian Securities and Investments Commission (ASIC) Register to make one platform administered by the ABR within the Australian Taxation Office (ATO).[1]  Within this new register, company directors will be required to have an identification number (Director Identification Number or DIN). [Read more…]

Directors personal liability – misleading & deceptive conduct

Despite the corporate veil, there are many ways in which a director can be personally liable for activities the company which they direct.  One such ground is misleading and deceptive conduct pursuant to section 18 of the Australian Consumer Law (Cth) (ACL).  This question of personal liability is of concern to conservative and risk averse directors who attempt to strike the delicate balance between governance and entrepreneurialism.  Misleading and deceptive conduct can occur in a variety of circumstances in business dealings.  From misleading advertising, inaccurate projections to contractual dealings between parties.  It could be as simple as making misstatement regarding a profit forecast or embellishing the outcome of a contract. [Read more…]

“Approved by ASIC” – a $20,000 problem…

Whilst the financial services sector seems to have embraced the innovation economy, a recent case shows just how important it is for Australian Financial Services Licence, (AFS) holders to take care when advertising their products.

A recent case brought by the Australian Securities and Investments Commission, (ASIC) is a reminder that when advertising investment schemes precise language needs to be used.

[Read more…]

Distribution agreements – an introduction

A distribution agreement (Distribution Agreement) is a form of commercial contract where  one party, the distributor (Distributor) is granted the right to distribute goods or services of another supplier (Supplier) to clients or customers usually in a distinct territory. [Read more…]

Third line forcing and commercial contracts

Third line forcing is a form of exclusive dealing that is prohibited under the Competition and Consumer Act 2010 (Cth)(CCA).  It occurs where one corporation (Forcer) enters into a contract to supply goods or services to another (Forced Party), which includes an obligation to buy goods or services from an unrelated third party (Third Line Party).

It’s common in various commercial contracts including franchise and license agreements, for the issuer of the contract to attempt to limit or restrict who a party buys goods or services from. The reason for this is obvious in terms of the need to ensure that a uniform product is delivered to customers. The often cited example being the uniformity of the width of fries served at every McDonald’s throughout Australia and for that matter the world.

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Federal Circuit Court invalidates ‘no refunds’ clause

In a recent judgment (Ferme v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384), the Federal Circuit Court held that a term of a cruise company’s standard conditions, which allowed the company to cancel a cruise for a wide range of reasons without giving any refunds to its passengers, was an ‘unfair term’ under the Australian Consumer Law (ACL) and therefore void. [Read more…]

Misleading and deceptive conduct in business dealings

Business dealings between two or more parties often involve statements or representations during negotiations prior to reaching a concluded bargain. This article considers some case examples of conduct found to be misleading and deceptive in a variety of common business and commercial settings

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