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Competition and Consumer Law Reading Guide

Reading Guide

Competition and Consumer Law

LAW4702

Semester 1: 2018

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Competition and Consumer Law Reading Guide

Week Activities Prior class reading

1 Framing the Question: introduction and Unfair Consumer Chapters 1 [pp.10-19]; 2


Contract Terms and 3; 5 and 7 Consumer
text

2 Liability of Manufacturers of Goods with Safety Defects Chapter 8 Consumer text

3 Product Safety Standards and Statutory Remedies Chapter 8 Consumer text

4 Unfair terms and Unconscionable conduct Chapters 5 and 6 Consumer


text

5 Misleading or Deceptive Conduct See Moodle

6 Consumer Guarantees Chapter 4 Consumer text

7 Markets, market power and competition

8 Mergers

9 Misuse of market power

10 Anti-competitive arrangements

11 Exclusive dealing

12 Resale Price Maintenance and Penalties and remedies

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Competition and Consumer Law Reading Guide

WEEK 1: Introduction to Consumer Law

Learning outcomes:

By the end of this topic, students should have an understanding of ,


and a capacity to critique:

• the policy, theoretical and legal debates about the meaning and
purpose of “consumer law”;
• the rapid growth of consumer markets and consumerism from
the mid-20th century and the moves to regulate the marketplace
for the benefit of consumers;
• theories about the operation of the marketplace;
• elements of regulatory theory;
• the psychology of consumer behaviour in the marketplace.

Essential reading is bolded

Some of the listed materials are available on the Moodle folder for this week.

What exactly is consumer law?


Malbon and Nottage chapters 1 [pp.10-19]; 2 and 3
John Goldring, “Consumer Law and Legal Theory: Reflections of a Common Lawyer”
(1990) 13 Journal of Consumer Policy113
Paul O’Shea and Charles Rickett, “In Defence of Consumer Law: The resolution of consumer
disputes” (2006) 29 Sydney Law Review 140
James Q. Whitman, “Consumerism Versus Producerism: A Study in Comparative Law”
(2007) 117 Yale Law Journal 340
A Brief History of Consumerism
Australian Productivity Commission, Review of Australia’s Consumer Policy Framework
Inquiry (2008) Volume 2, chapters 1 and 2

Markets, consumption and ideology


Doug Hay “The State and the Market in 1800: Lord Kenyon and Mr Waddington” (1999) 162
Past and Present 101.

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Competition and Consumer Law Reading Guide

The policy process


The Productivity Commission usefully outlines the way the policy process operates within
Australia. Productivity Commission 2008 vol 1 pp.7-17

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Competition and Consumer Law Reading Guide

Week 2: Liability of Manufacturers of Goods with Safety Defects

EssentialLearning
reading isoutcomes:
bolded
The listedBymaterials arethis
the end of available on the blackboard
topic, students folder foroperation
should understand this week.of the
following parts of the Australian Consumer Law:

• Pt 3-5 – Liability of Manufacturers with Goods for Safety


Defects;
• The ways of enforcing the above provisions under the Law.

Essential reading is bolded


Some of the listed materials are available on the blackboard folder for this week.

Reading
Malbon and Nottage Chapter 8
Bruce; Consumer Protection & Product Liability Law in Australia – Chapter 12
Australian Productivity Commission, Review of Australia’s Consumer Policy Framework
Inquiry (2008), Volume 2, Chapter 8
J Kellam & L Nottage “Happy 15th Birthday, Part VA TPA! Australia's Product Liability
Morass” (2007) Sydney Law School, Legal Studies Research Paper.

Common law liability


Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48
Lambert v Lewis [1982] AC 255
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Glendale Chemical Products Pty Ltd v ACCC (1998) 90 FCR 40
Forbes v Selleys Pty Limited [2002] NSWSC 547

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Competition and Consumer Law Reading Guide

Table of legislative provisions

Topic / Legislation Trade Practices Act (TPA) (1974, as Australian Consumer Law (ACL)
amended) (2010) = Competition and Consumer
Act (2010) Schedule 2

Manufacturers’ liability for unsafe or Div 2A – Actions against Pt 5-4: Remedies related to
inadequate products Manufacturers and Importers of Guarantees
Goods
(s271 - consumers supplied with
(eg s74B - unsuitable goods (not fit goods not complying with guarantees,
for purpose), s74D - unmerchantable ie unfit for purpose (s55) or lacking
quality; ss 74H-J, subject to 74L – ‘acceptable quality’ (s54), can claim
indemnification of supplier by against the ‘manufacturer’, as well as
manufacturer if supplier liable to the ‘supplier’ (under s 259); s274,
consumer) subject to s276A – indemnification)

Product liability for unsafe (= Pt VA – Liability of Manufacturers Pt 3-5: Liability of Manufacturers


defective) goods and Importers for Defective Goods with Goods for Safety Defects

(eg s75AC - ‘defect’, s75AD - causing (respectively, s9, s138, s140)


injuries, s75AD - loss relating to other
goods)

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Competition and Consumer Law Reading Guide

Week 3: Product Safety Standards and Statutory Remedies

The listedLearning
materialsoutcomes:
are available on the blackboard folder for this week.

By the end of this topic, students should understand operation of the


following parts of the Australian Consumer Law:

• Parts 3-3 and 3-4;


• the orders and remedies available to private parties under Chapter
5 ACL.

Essential reading is bolded


Some of the listed materials are available on the blackboard folder for this week.

Reading
Malbon and Nottage Chapter 8
Bruce; Consumer Protection & Product Liability Law in Australia – Chapters 13 and 18
BMW Australia Ltd v Australian Competition and Consumer Commission 207 ALR 452
Miller v Fiona's Clothes Horse of Centrepoint Pty Ltd (1989) ATPR ¶40-963
ACCC v Dimmeys Stores Pty Ltd [1999] FCA 1175
Clarke v New Concept Import Services Pty Ltd (1982) ATPR 40-284
ACCC v Hungry Jack’s Pty Ltd [1996] 955 FCA
Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd (No 3) [2017]
FCA 1488

Topic / Legislation Trade Practices Act (TPA) (1974, as Australian Consumer Law (ACL)
amended) (2010) = Competition and Consumer
Act (2010) Schedule 2

Product safety regulation Div 1A – Product Safety and Pt 3-3: Safety of Consumer Goods
Product Information and Product Related Services; Pt 3-
4: Information Standards
(eg s65B - warning notice, s65C -
safety standards [& bans], ss 65D-E – (respectively, s129, ss 109 & 114, ss
information standards, 65F - 134-5, s122, s128)
compulsory recall, s65R - voluntary
recall notification) [& Div 5 ss 131-2 - adding: reporting
requirement for goods causing serious
injury or illness]

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Competition and Consumer Law Reading Guide

Pt VC - Offences Ch 4 - Offences

Enforcement and Remedies Pt VI – Enforcement and Remedies Ch 5 - Enforcement and Remedies


(eg s 80 - injunctions)
(eg s232)

[Also eg:

- ss 259-60 - ‘major failure’ of


non-complying goods;
- s277 - representative action
by the regulator;
- s219 - ‘regulator may require
claims to be substantiated’]

Compare operation under Trade Practices Act

Remedies
• Injunctions — ACL Pt 5-2 Div 2
• Damages — ACL Pt 5-2 Div 3 s 236

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Competition and Consumer Law Reading Guide

• Causation
• Failure to take reasonable care — CCA Pt XI s 137B
• Compensation orders — ACL Pt 5-2 Div 4

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Competition and Consumer Law Reading Guide

Week 4: Unfair Contract Terms and Unconscionable Conduct

Learning outcomes:

By the end of this topic, students should understand:

• The new national law for dealing with unfair contract terms;
• UK developments leading to the new Australian law;
• The Victorian law regarding unfair contract terms;
• Unconscionability under the unwritten law
• The operation of the unconscionability provisions of the ACL
• Remedies for unconscionability

Essential reading is bolded


Some of the listed materials are available on the blackboard folder for this week.

Reading
Malbon and Nottage chapters 5, 6 and 7
Bruce; Consumer Protection & Product Liability Law in Australia – Chapters 2 and 7
James J Davidson “Unfair contract terms and the consumer: A case for proactive regulation?”
(2007) 15 CCLJ 74.
Anthony Gray “Unfair Contracts and the Consumer Law Bill” (2009) 9 QUT Law Journal
155.
Stephen Corones “Regulating unilateral supermarket misconduct as customer/acquirer of
goods and services” (2015) 43 ABLR 400

Cases and materials


Unfair terms
Australian Productivity Commission, Review of Australia’s Consumer Policy Framework
Inquiry (2008) Volume 2, pp.149-169
Director General of Fair Trading v First National Bank plc [2000] EWCA Civ 27, [2000]
QB 672.
UK Office for Fair Trading “Unfair Contract Terms Guidance: Guidance for the Unfair
Terms in Consumer Contracts Regulations 1999”
T Wilhelmsson and C Willett “Unfair Terms and Standard Form Contracts” (paper)

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Competition and Consumer Law Reading Guide

Director of Consumer Affairs Victoria v. AAPT Limited (2006) Victorian Civil and
Administrative Tribunal
Free v. Jetstar Airways Pty Ltd (2008) Victorian Supreme Court
Director of Consumer Affairs Victoria v Craig Langley [2008] VCAT 482
ACCC v CLA Trading Pty Ltd [2016] FCA 377
ACCC v Chrisco Hampers Australia Limited [2015] FCA 1204
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199
ACCC v ACN 117 372 915 Pty Limited (in liq) [2015] FCA 368
ACCC v JJ Richards Pty Ltd [2017] FCA 1224

Unconscionability
ACCC v CG Berbatis Holdings [2003] HCA 18
Kakavas v Crown Melbourne Ltd [2013] HCA 25
ASIC v National Exchange [2005] FCAFC 226
Paciocco v ANZ [2016] HCA 28
ACCC v Lux Distributors [2013] FCAFC 90
ACCC v Get Qualified Australia Pty Ltd [2017] FCA 709
ACCC v Unique International College [2017] FCA 727
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75

Websites
http://consumerlaw.gov.au/consumers-and-the-acl/

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Competition and Consumer Law Reading Guide

Week 5: Misleading or Deceptive Conduct

Learning outcomes:

By the end of this topic, students should understand:

• The key requirements for establishing misleading or deceptive


conduct

• The applications of s18 ACL

• The defences

• The remedies

Essential reading is bolded


Some of the listed materials are available on the blackboard folder for this week.

Reading
On moodle site
J Cameron, F Shand and C McKay ‘When does silence in commercial negotiations constitute
misleading or deceptive conduct?’
M Richardson, ‘Before the High Court: Why Policy Matters: Google Inc v Australian
Competition and Consumer Commission
G Clarke ‘Misleading or Deceptive Conduct Cases in the Supreme Court of Victoria’
Gill North ‘Companies take heed: The Misleading or Deceptive Conduct Provisions Are
Gaining Prominence’

Cases
Demagogue v Ramensky (1992) 39 FCR 31
Parkdale Custom Built Furniture v Puxu (1982) 149 CLR 191
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
ACCC v TPG [2013] HCA 54
Campbell v Backoffice Investments (2009) 257 ALR 610

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Competition and Consumer Law Reading Guide

Butcher v Lachlan Elder Realty [2004] HCA 60


ASCI v Fortescue Metals Group Ltd (2011) 190 FCR 364
Google Inc v ACCC [2013] HCA 1
ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305

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Competition and Consumer Law Reading Guide

Week 6: Consumer Guarantees

EssentialLearning
reading isoutcomes:
bolded
The listedBymaterials arethis
the end of available on the blackboard
topic, students folder for this week.
should understand:

• The operation of the consumer guarantees provisions of the


Australian Consumer Law;
• The related remedies for breaches of consumer guarantees.

Essential reading is bolded


Some of the listed materials are available on the blackboard folder for this week.

Reading
Malbon and Nottage chapter 4
Bruce; Consumer Protection & Product Liability Law in Australia – Chapter 10
S Corones, “Consumer Guarantees in Australia: Putting an End to the Blame Game”
(2009) 9 QUT Law Journal 137.
Commonwealth Consumer Affairs Advisory Council “Consumer Rights Reforming Statutory
Implied Conditions and Warranties: Final Report” (2009)
K Tokeley, “Leaky Buildings: The Application of the Consumer Guarantees Act 1993”,
(2003) 20 New Zealand Universities Law Review 478.
R Ahdar, “Consumer Guarantees in the New Zealand Court of Appeal” (2000) 28 Australian
Business Law Review 313.
K Tokeley, “Late Departures: Consumers' Rights under the Consumer Guarantees Act 1993”,
(2001-2004) 10 Otago Law Review 411.

Cases
ACCC v Fisher & Paykel [2014] FCA 1393
ACCC v HP Superstore Pty Ltd [2013] FCA 1317
ACCC v Gordon Superstore [2014] FAC 452
Paisley v Aitchison trading as Dean Cars [2012] VCAT 1483
Medtel Pty Ltd v Courtney [2003] FCAFC 151
Merck Sharp & Dohme [2011] FCAFC 128
Henry Kendall v William Lillico

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Competition and Consumer Law Reading Guide

Ashford Shire Council v Dependable Motors Pty Ltd (1960) 104 CLR 139
Valve Corporation v ACCC [2017] FCAFC 224

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Competition and Consumer Law Reading Guide

Week 7 : Markets, market power and competition

Act: s 4E

Cases:

Re Queensland Co-operative Milling Association

Re Tooth and Tooheys

Singapore Airlines v Taprobane Tours

Queensland Wire Industries v BHP

Outboard Marine Australia

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Competition and Consumer Law Reading Guide

Week 8: Mergers
Act: s 50, s 5

Case:

ACCC v Metcash

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Competition and Consumer Law Reading Guide

Week 9 : Misuse of market power


Act: s 46

Cases:

Queensland Wire Industries v BHP

Boral Besser Masonry v ACCC

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Competition and Consumer Law Reading Guide

Week 10: Anti-competitive arrangements


Act: s 45, s 4D, Div 1

Cases:

Apco Service Station v ACCC

ACCC v CC

ASXO v Pont Data

Rural Press v ACCC

Seven Network v News

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Competition and Consumer Law Reading Guide

Week 11: Exclusive dealing


Act: s 47

Cases:

Castlemaine Tooheys v Williams & Hodgson Transport

ACCC v IMB

Re Tooth and Tooheys

Universal Music v ACCC

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Competition and Consumer Law Reading Guide

Week 7 : Resale Price Maintenance and Penalties and remedies

Act: s 48, ss 96-100

Cases:

TPC v Sony

ACCC v Dermalogica

Penalties and remedies

Act: s 76, s 80, s 81, s 82, s 86C, s 86D, s 86E, s 87, s 87B

For sanctions against cartel conduct: s 44ZZRF, RG, s 6(5B), s 79

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