LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
25 COMPETITION AND CONSUMER LAW
SUMMER SESSION 2017-18
This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.
Course Description and Objectives / 1Lecturer / 2
Synopsis / 3
Assessment / 3-4
March 2018 Examination / 4
Lecture Program / 5-7
Texts and Materials / 8
Compulsory Assignment / 9
Assignment Question
Sample Examination Question / 9
10
Case List / 11-14
14
LAW EXTENSION COMMITTEE
/SUMMER 2017-18
25 COMPETITION AND CONSUMER LAW
COURSE DESCRIPTION AND OBJECTIVES
Competition And Consumer Act 2010 ("CCA”)
CCA, was previously titled the Trade Practices Act 1974.
The CCA incorporates the Australian Consumer Law ("ACL").
The ACL consolidates a number of national, state and territory Fair Trading laws so as to ensure consistency in the rights of:
· persons confronted by deceptive/unfair trade practices: and
· consumers with respect to statutory guarantees and product liability.
Why Study Competition and Consumer Law?
The CCA/ACL is a very powerful piece of legislation which, for over 40 years, has helped change the face of commerce on Australia. The CCA/ACL is fundamental to an understanding and application of commercial law in Australia
The CCA/ACL .impacts on all aspects of Australian commercial activity: transactions, contracts, distribution arrangements, competition in markets, advertising, marketing, representations and conduct in trade or commerce.
Many consumer rights are enshrined in the ACL.
Object of the Act
S2 of CCA: “The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection”
What does the CCA/ACL cover?
Basically, prohibitions, remedies and enforcement pertaining to
· Practices that restrict or attempt to restrict trade or otherwise impede competition (restrictive trade practices)
· Practices that are or a likely to be misleading/deceptive/sharp/unconscionable (deceptive trade practices); and
· Liability regarding goods and services (product liability).
The restrictive trade practices provisions contained in the CCA prohibit:
· collective/collusive practices (via contracts, arrangements or understandings) involving competitors and/or potential competitors) in the form of cartels;
· collective/collusive practices (via contracts, arrangements or understandings) involving competitors and/or potential competitors) in the form of the creation of exclusionary provisions and otherwise that, actually or are likely to, substantially lessen competition in a market; and
· unilateral business practices/conduct which damage or can damage competition in markets for goods and services in Australia;
· these unilateral practices include, the misuse of market power, engaging in exclusive dealings, applying resale price maintenance conditions, embarking on problematic mergers and acquisitions etc.
The ACL is concerned with:
· deceptive/unconscionable/unfair conduct/practices/representations by persons in trade or commerce, including in advertising, internet trading etc.
“Persons”: defined to include bodies corporate (e.g. businesses/partnerships) and bodies politic;
· Statutory guarantees and other forms of product liability.
Breaches of the CCA and ACL can attract very heavy pecuniary penalties, substantial damages and other orders.
Course Design
The course is designed to examine, understand and apply:
· the jurisdictional limits of the CCA/ ACL, including application to Federal/state/territory governments;
· the structure and application of key sections of the CCA/ACL;
· the relevant cases;
· means of ensuring that “persons” including “consumers” and businesses, are protected from misleading & deceptive/unconscionable conduct & sharp practices;
· the voiding of “unfair terms” in consumer and small business contracts;
· product liability rights, including statutory guarantees applying to all consumer contracts for goods and services;
· product liability rights against manufacturers supplying good which contain a safety defect;
· enforcement/penalties provisions of the CCA:
· remedy provisions of the CCA: and
· the remedy provisions of the ACL.
LECTURER
Mr J S Mendel, BCom (UNSW), LLB (UTS)
Mr Mendel was admitted to the Supreme Court of New South Wales and the High Court of Australia in 1990 and, since then, has been a member of the NSW Bar Association,.
He is a practising Sydney barrister, a court appointed arbitrator (since 2004), university lecturer in competition and consumer law (since 1991), presenter at legal professional development seminars and a member of the Australasian Law Teachers Association.
SYNOPSISA detailed synopsis of the course is posted on the LEC Webcampus.
The synopsis be read in conjunction with the course programme in the Subject Guide.
ASSESSMENTTo be eligible to sit for the Legal Profession Admission Board’s (LPAB) examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled.
This gives you access to the full range of learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the LPAB.
Assignment results are used to determine eligibility to sit for the final exam.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible.
However, a category of “deemed eligible to sit for examinations” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. A mark below 40% means a student is not eligible to sit for the examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The LEC administers the setting and marking of assignments. The LEC engages the LPAB’s examiners to assess or supervise the assessment of assignments.
Submission of Assignment
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Supporting evidence must be provided.
Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment of Assignment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments.
Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus.
Students are responsible for checking their results and ascertaining their eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review.
The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2018 examination
Candidates will be expected to have:
µ made a study of the prescribed materials in relation to the topics identified hereunder;, and
µ read/analysed the cases and statutory provisions referred to in the LEC's Subject Guide.
All enquiries in relation to examinations should be referred to the LPAB.
Lecture PROGRAMME: Internet & WEEKEND SCHOOLs lecturesCompetition and Consumer Law is offered in a mixed mode.
Lectures will be as follows:
µThree (3) lectures will be conducted over the internet
µ face to face lectures will be conducted at the two (2) weekend schools, .
Students will be provided with diagrams on the various sections of the CCA/ACL and a detailed synopsis of the subject which will be posted on the LEC Webcampus.
Internet/Online Lectures
The 3 lectures conducted by Internet. Are on:
1. Tuesday, 14 November 2017, commencing at 6 PM and concluding at 8:30 PM.
2. Tuesday, 16 January 2018, commencing at 6 PM and concluding at 8:30 PM.
3. Tuesday, 13 February 2018, commencing at 6 PM and concluding at 8:30 PM.
Access to the relevant technology is assumed.
The logistical details of these lectures will be advised by email separately.
The process is simple and effective.
You will receive an email from the LEC office in the week prior to the online session.
These lectures will enable interaction between the lecturer and the students.
The first Internet lecture will comprise a detailed outline of the subject, an introduction to the key elements of the course and consideration of important definitions..
The second lecture will cover topics pertaining to the ACL (Definitions (Chapter 1 ss 2, 3); Representations as to future matters: i.e. promises and predictions (s 4), misleading or deceptive conduct (s18))
The third Internet lecture will comprise a revision of the sections covered in the course together with a consideration of the matters relevant to the preparation for the examination.
Note that these lectures are live and will not be recorded for viewing after the abovementioned dates.
LECTURES ON WEEKEND SCHOOL 1
Saturday 25 November 2017: 8.00am – noon in Abercrombie Seminar Room 1160
Sunday 26 November 2017: noon – 4.00pm in Abercrombie Seminar Room 1160
TOPIC / SECTIONS OF CCACCA/ACL.
Extended jurisdiction of the CCA; to Federal/State/Territory Governments
Definitions in CCA / ss 2A, 2B, 2C
ss 4, 4B, 4C, 4D, 4F, 4G, 4K
Competition policy and its significance to the CCA,
Markets & derivation of a “market” / s 4E
CCA PART IV: RESTRICTIVE TRADE PRACTICES
Cartel Conduct
- Offences
- penalties
Contracts, arrangements or understandings that:
· contain and exclusionary provision (i.e. restriction of commercial dealings); or
· significantly lessen competition
in a market.
Exclusionary provisions / Division 1
s 44ZZRF-RK
s 45
s4D
Misuse of:
·
market power &
· where there is a substantial share of a market / s 46
Exclusive dealing (non= price restrictions) / s 47
Resale price maintenance (price restrictions)
Mergers and acquisitions / s 48 and Part VIII
s 50
LECTURES ON WEEKEND SCHOOL 2
Saturday 3 February 2018: 8.00am – noon in New Law School Seminar Room 115
Sunday 4 February 2018: noon – 4.00pm in New Law School Seminar Room 115
TOPIC / SECTIONS OF ACLACL: DECEPTIVE TRADE PRACTICES
Misleading or deceptive conduct (con’t) / Part 2 – 1: s 18
Unconscionable conduct;
unconscionable conduct within the meaning of the unwritten law
unconscionable conduct in connection with goods and services
Industry codes (mandatory and voluntary codes) / Part 2 – 2: s 20,
S20
ss 21,s 22
Part IVB CCA
Unfair terms in consumer and small business contract
Unfair practices
False representations including
False representations in relation to land
Other forms of unfair practices / Part 2 – 3
Part 3 – 1:
s 29,
s30,
33, 34, 35, 47, 48, 50
ACL: PRODUCT LIABILITY
Statutory “consumer” guarantees
Definition of “Consumer”
Action against suppliers of goods failing to meet certain criteria
Liability of manufacturers for goods containing a safety defect / Part 3 – 2, Division 1
S3
Part 5 – 4
Part 3 – 5
ENFORCEMENT, REMEDIES
Enforcement and Penalties for breaches of Part IV
Defences,
Re Remedies for breaches of the ACL
/ Orders;
Person "involved in a contravention" / CCA ss 75B, 76, 79, 85
CCA ss 80, 81, 82, 87
ACL Chapter 5
TEXTS AND MATERIALS
Course Materials
Guide to the Presentation and Submission of Assignments and synopsis for the subject (available on the LEC Webcampus)
Prescribed Materials
Miller’s Australian Competition & Consumer Law Annotated, 39th ed. Thomson Reuters, 2017
OR
Steinwell, Annotated Competitions & Consumer Legislation, 2017 ed. LexisNexis
Recommended acquisition/access:
Reference Materials (A publication containing a discussion/extracts of the main cases).
· Steinwall et al., Australian Competition Law, LexisNexis, 2000 (out of print – check Law Library)
· Lockhart, The Law of Misleading and Deceptive Conduct, 4rd ed. LexisNexis, 2014
· P Vout (ed), Unconscionable Conduct - The Laws of Australia, The Lawbook Company, 2009
· Sweeney, Bender, Courmadias, Marketing and the Law, 2015 LexisNexis
· Corones, Competition Law in Australia, 6h ed. Thomson Reuters, 2014
· Bruce, Consumer Protection in Australia, 2nd ed. LexisNexis, 2013
· Bruce, Competition Law in Australia, 2nd ed. LexisNexis, 2013
· Duns and Duke Competition Law Cases and Materials 4th ed 2015 LexisNexis
· Corones & Clarke, Australian Consumer Law: Commentary & Materials, 5th ed. Thomson Reuters, 2015
· Coorey Australian Consumer Law 2015 LexisNexis
Other Materials
Students are also referred to various recent commercial/business law publications which include chapters on the CCA, e.g. K Lindgren Vermeesch & Lindgren Business Law of Australia 12th ed LexisNexis 2011, Turner, Australian Commercial Law, Thomson Reuters 2010; Pearson & Fisher, Commercial Law Commentary and Materials, Thomson Reuters, 2010; the loose leaf service on the CCA; relevant seminar papers and articles published in law journals.
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the LEC Webcampus in the Course Materials section.
compulsory ASSIGNMENT
There is ONE ASSIGNMENT.
It must be submitted by the due date.
The pass mark is 50%. (Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading and assessment criteria.)
Students who fail to satisfy the compulsory requirements will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject.
The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.