1. A Busy Lawyer’s Guide to Australian Competition Law “from the unfair practices provisions of Part V of the TPA to the Australian Consumer Law … “the recently introduced provisions about Consumer guarantees” Doug Shirrefs – Barrister

2. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW 1INTRO – THE AUSTRALIAN COMPETITION LAW Since 1 January 2011, the Trade Practices Act 1974 (Cth) (TPA) no longer exists. Inspired by a presentation I saw by Blake Dawson, and after wading through the detailed comparison in the latest version of Miller’s, I thought I would put together my own mud map of the most common bit of consumer law from under the old regime to under the new Australian Consumer Law. I have thrown in the relevant ASIC Act provisions for misleading and deceptive conduct and unconscionable conduct as well because you tend to see the three statutes together where conduct involves companies and individuals. The Competition and Consumer Act 2010 (CCA) preserves Part I (the important application and definition provisions), Part IIIA (Access regimes) and Part IV (prohibitions on restrictive trade practices) of the TPA in the way you are used to seeing it under TPA. THE BIG CHANGE is the movement of the consumer law provisions (what you knew as Part V) into Schedule 2 to the CCA. The following outline is a dotpoint guide to the contents of the ACL. Since 1 January 2011, the Competition and Consumer Act 2010 (Cth), formerly the Trade Practices Act 1974 (Cth).

3. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW 2OUTLINE – THE AUSTRALIAN COMPETITION LAW Chapter 1 – Introduction Chapter 2 – General protections in trade and commerce, including: the well-known general ban on misleading and deceptive conduct; the well-known general ban on unconscionable conduct; provisions making unfair contract terms in consumer contracts void. Chapter 3 – Specific protections in trade and commerce, including provisions; banning specific unfair practices; pyramid schemes; consumer transactions; regulating safety of consumer goods and product-related services; regulating the making and enforcement of information standards; regulating the liability of manufacturers for goods with safety defects. Chapter 4 – Offences Chapter 5 – Enforcement and Remedies

4. 3COMPARATIVE PROVISIONS – WHERE TO FIND COMMONLY USED SECTIONS FROM THE TRADE PRACTICES ACT Note – Remember to find these sections you need to look in Schedule 2 of the CCA. Issue ACLTPAASIC Definition of Consumer34B, 6012BC Misleading representations (future matters) 451A12BB Definition of safety defect in relation to goods975AC Misleading or deceptive conduct185212DA Unconscionable conduct (unwritten law meaning)2051AA12CA(1) Unconscionable conduct (statutory meaning)2151AB12CB(1) Specific false or misleading representations about goods or services295312DB Pyramid schemes44-4665AAA-12DK 65AAE Single price must be specified in certain circumstances4853C12DD Guarantees - acceptable quality / fitness for disclosed purpose 54, 5571 Guarantee - due care and skill / fitness for particular purpose60,6174 Injunctions232-2358012GD Actions to recover damages2368212GF Applications for other orders24287(1B)12GM 87(1C) Kinds of orders that may be made24387(2) Power of a court to make orders24487(1) Other remedies (inc, adverse publicity orders)246-25086C-86F 12GLA- GLD Defences251-2538512GI Actions for damages against 271-27374J manufacturers of goods Indemnification of suppliers by manufacturer27474H

5. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW 4 OUTLINE – CONSUMER GUARANTEES The old chestnuts in Division 2 Part 2 – “implied warranties and conditions in consumer transactions”, but a little bit more user friendly as no breach of contract required. Application – same, but different. “Was” s 68 (application not to be excluded or modified); “is” schedule 2 s 64 (guarantees not to be excluded or modified by contract). Application – all supplies. Includes agreements to supply, so applies to all goods supplied after 1 Jan 2011. Application – acquisition by a consumer “cost less than $40, or of a kind or quality for personal, domestic, household use or consumption” Application – No change. No private sales. Transactions in trade and commerce.

6. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW Consumer guarantees – Goods Issue ACLTPA Title to Goods – implied right to sell5169 Right to undisturbed possession5269 No undisclosed securities5369 Acceptable quality5471 Fit for disclosed purpose5571 Match description – goods5670 Match demo/sample – goods5772 Repairs and spares are available5874 M/facturer’s express warranties5974G

7. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW S 54(2) Fit for ALL purposes goods of that kind are commonly supplied for Acceptable in appearance and finish Free from defects Safe Durable As a reasonable fully acquainted consumer would regard as acceptable “reasonableness” The meaning of “reasonableness” has regard to nature of good, price of good, statements on packaging and labelling, representations of the suppliers or manufacturers -think pleadings ! Another cause of action?

8. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW Consumer guarantees – Services Issue ACLTPA Render with due care and skill6074 must exercise due care; and must have acceptable level of skill in the relevant area of activity Fit for purpose6174 Supply within a reasonable time62New provision If the time within which the services are to be supplied: -not fixed by the contract for the supply -is not to be determined in a manner agreed between the consumer and the supplier Implied guarantee that services will be supplied within a reasonable time

9. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW Consumer guarantees – Remedies Two streams: 1 Failures not major and can be remedied, then remedy. If remedy fails, damages. 2 Major failure or cannot be remedied, then reject goods and elect refund or a replacement. Any associated services contract can be cancelled and refund can be recovered for services paid for (ie) mobile phones ?

10. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW Consumer guarantees – Remedies cont. Guidance on major failures/ failure to remedy goods or services wouldn’t have been acquired by a reasonable person acquainted with the failure Depart in a significant respect from the demo/described goods Goods or services substantially unfit for purpose they are commonly supplied for and they cant be fixed within a reasonable time to make them fit Goods or services for a disclosed purpose made known to the supplier and they cant be remedied within a reasonable time to make them fit Goods not of an acceptable quality because they are unsafe or supply of them creates an unsafe situation Consumer : 1 Elect for refund or replacement 2 Recover for loss/damages reasonably foreseeable as a result of the failure (can go against manufacturer or supplier)

11. A BUSY LAWYER’S GUIDE TO THE AUSTRALIAN CONSUMER LAW Questions ? War stories ? Doug Shirrefs – Green’s List Ph. 9225 7540