We help our clients structure their compliance systems to ensure they comply with regulations without compromising profitability in a competitive marketplace. Our focus is on delivering practical outcomes in complex situations.

The Competition and Consumer Act 2010, along with Australian Consumer Law (ACL), underpins Australia's competition and consumer regulations, which are enforced by the Australian Competition and Consumer Commission (ACCC). Contraventions of these laws attract significant fines and pecuniary penalties for non-compliant businesses, company directors, and officers.

Our corporate lawyers offer comprehensive services in competition and consumer law, including:

• developing compliance policies and procedures

• advising on competition implications of proposed projects, takeovers, and media campaigns

• misleading and deceptive conduct

• return policies and procedures 

• providing general corporate advisory services in competition and consumer law issues such as cartels, third line forcing

• representing clients in dealings with the ACCC and ASIC, and bringing and defending court proceedings relating to anti-competitive trade practices and breaches of consumer laws generally 

• warranties and guarantees

Consumer Protection, Misleading and Deceptive Conduct, and Unfair Contracts

 

The Australian Consumer Law (ACL) forms the foundation of Australian advertising and marketing regulations and is applicable to various commercial transactions. Similar provisions can be found in State fair trading legislation.

At RHC Solicitors, we adopt a practical approach when advising businesses on consumer protection, unfair contract terms and misleading and deceptive conduct in the course of trade.

Our advice encompasses the legislative provisions along with other pertinent subjects like copyright, trade promotions, and contracts. We can also conduct training for our clients to address advertising and marketing risks, including those arising from social media like Tiktok, Instagram, Facebook and other social media platforms.

The ACL also prohibits unfair contract terms in standard form consumer contracts involving corporations and contracts related to financial products or the provision of financial services.

Any term deemed "unfair" within a standard form consumer contract may be rendered void and treated as though it never existed under the provisions concerning unfair contracts. This means that it is more important than ever to ensure you get the right advice.

 

Unconscionable Conduct

Unconscionable conduct refers to behaviour that is so harsh or unjust that it is contrary to good conscience.

The Australian Consumer Law (ACL) prohibits businesses from engaging in unconscionable practices towards consumers or other businesses.

The legal definition of unconscionable conduct is not precisely defined; rather, it has evolved and been considered by courts on a case-by-case basis.

In determining whether conduct is unconscionable, courts typically assess whether it contradicts the morals and principles upheld by the community.

It is important to note that unfair conduct alone is insufficient for the courts to deem it unconscionable. There must be an additional element that makes it exceptionally harsh. For example, if a business intentionally targets vulnerable consumers, such as those who are experiencing personal hardships like the loss of a loved one, domestic violence, homelessness, or the aftermath of a natural disaster, those who are ill or have disabilities, minors who cannot make informed decisions, individuals with difficulties in literacy or basic financial skills, non-English speakers, people residing in remote areas, or those not proficient in using modern technology like the internet or smartphones. There are many other examples.

Unconscionable conduct can also occur in situations that do not involve the deliberate targeting of such vulnerable consumers.

In assessing whether behaviour is unconscionable, the courts may take into account various other factors, such as:

• The relative bargaining strength of the parties involved;

• Whether the stronger party imposed conditions on the weaker party that were not reasonably necessary to safeguard the legitimate interests of the stronger party;

• The ability of the weaker party to comprehend any documents utilised;

• The use of undue influence, pressure, or unfair tactics by the stronger party;

• The price or terms at which the weaker party could have obtained similar products or services from another business;

• Whether the stronger party acted unreasonably in failing to inform the weaker party about significant risks that the stronger party knew the weaker party was unaware of;

• The relevant industry codes and requirements;

• The willingness of the stronger party to negotiate;

• Whether the stronger party had the ability to alter the contract's terms without the consent of the weaker party;

• Whether the parties acted in good faith.

However, it's essential to understand that courts will assess all the factors related to the issue, not just those specifically listed above.

These provisions in the ACL have extensive application to consumer transactions as well as to some business to business transactions, including retail shop leases. 

RHC Solicitors have extensive experience in advising clients in a number of industries such as manufacturing, retailing, and commercial property transactions to ensure compliance with the ACL provisions. We also act for clients in ongoing disputes and proceedings where unconscionable conduct is being alleged.

 

Competition and Restrictive Practices

Comprehensive regulations on horizontal and vertical restraints, mergers, market power, and resale price maintenance are encompassed within Part IV of the Competition & Consumer Act (CCA).

The ACCC implements an informal merger clearance system for mergers and acquisitions that could potentially significantly reduce competition.

At RHC Solicitors, we possess extensive expertise in guiding clients on how these legislative provisions apply to a proposed merger and acquisition, joint venture, and contractual commitments.

We also have considerable experience in seeking informal clearance from the ACCC for mergers and obtaining ACCC authorisation for conduct that may have anti-competitive implications or practices.

 

Franchising and the Australian Consumer Law

Franchising in Australia falls under the regulatory purview of the Franchising Code of Conduct, established under Part IVB of the Competition and Consumer Act (CCA). Additionally, many other provisions within the CCA are in fact relevant to franchising arrangements.

At RHC Solicitors, we possess extensive expertise in representing both franchisors and franchisees concerning matters related to the Franchising Code of Conduct and associated legal matters.

Our proficiency encompasses various different sectors (from motor vehicle dealerships, food outlets, retailers to gyms), where we are often involved in drafting, negotiating, updating and offering advice on franchise agreements.

We also regularly handle disputes and litigation on behalf of franchisors and franchisees, the latest of which included a major financial investment firm.

 

Commercial Disputes

Commercial disputes often involve elements of competition and consumer law, especially concerning restrictive trade practices and misleading and deceptive conduct or even unconscionable conduct.

At RHC Solicitors, our litigation and consumer law team has significant experience in handling commercial cases, and advising on the intersection of the ACL and State trade legislation.

Our approach to competition and consumer law revolves around developing strategic and practical solutions for our clients whist ensuring cost-effectiveness. We also leverage our in-depth knowledge of our clients' industries and understanding of the relevant laws to achieve favourable and desired outcomes.

 

Penalties and Compliance Programs

There are various consequences of breaching the provisions outlined in the Competition and Consumer Act (CCA) from criminal prosecution to civil breaches and pecuniary (monetary) penalties. These are often imposed against individuals, businesses, cartels and corporations and may relate to anti-competitive practices (misuse of market power, exclusive dealing, imposing minimum resale prices, anti-competition mergers), unconscionable conduct, making false or misleading statements or representation in the course of trade, breaching product safety and product information provisions, failure to response to a substantiation notice, and otherwise.

At RHC Solicitors, we have extensive experience in guiding businesses to establish good trade practice compliance programs to ensure their staff follows the law diligently. We also possess expertise in creating and implementing such programs across various industries, including retailing, media, and commercial property.

Our experience also extends to present litigation and proceedings, where we often approach the matter based on our clients needs and operational requirements.