LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
25 COMPETITION AND CONSUMER LAW
WINTER SESSION 2017
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 / 2
Assessment / 2-3
September 2017 Examination / 3
Lecture Program / 4-6
Texts and Materials / 7
Compulsory Assignment / 8
Assignment Question
Sample Examination Question / 8
9
Case List / 10-12
12
LAW EXTENSION COMMITTEE
/WINTER 2017
25 COMPETITION AND CONSUMER LAW
COURSE DESCRIPTION AND OBJECTIVES
COMPETITION AND CONSUMER ACT 2010 - Object of this Act
S2 “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”
The Competition and Consumer Act (Cth) 2010 ("CCA”), incorporating the Australian Consumer Law ("ACL"), (previously titled the Trade Practices Act 1974).affects all aspects of commercial transactions, representations and conduct. It also constitutes the primary basis upon which consumer rights are enshrined in law.
The ACL, in fact,, consolidates a number of national, state and territory laws to ensure consistency in the rights of consumers.
What does the CCA/ACL cover?:
Basically, prohibitions, remedies and enforcement pertaining to
· Practices that restrict trade (restrictive trade practices)
· Practices that are misleading/deceptive/sharp (deceptive trade practices); and
· Liability regarding goods and services (product liability).
The restrictive trade practices provisions contained in CCA prohibit:
· collective/collusive practices (via contracts, arrangements or understandings involving competitors and/or potential competitors) in the form of cartels and the creation of exclusionary provisions and otherwise that , actually or potentially, substantially lessen competition; and
· unilateral business practices/conduct which can damage competition in markets for goods and services in Australia, such as by the misuse of market power, exclusive dealings, resale price maintenance, problematic mergers and acquisitions etc.
The ACL is concerned with:
· deceptive/unconscionable/unfair conduct/practices by persons in trade or commerce.
“Persons” include bodies corporate (e.g. businesses) and bodies politic;
· Statutory guarantees and other forms of product liability.
Breaches of the CCA and ACL can attract heavy penalties, damages and other orders.
The course is designed to examine, understand and apply:
· the jurisdictional limits of the CCA/ ACL;
· 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;
· product liability rights, including statutory guarantees applying to all consumer contracts for goods and services and 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, admitted to the Supreme Court of New South Wales and the High Court of Australia in 1990, 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.
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.
SEPTEMBER 2017 examination
Candidates will be expected to have made a study of the prescribed materials in relation to the topics identified hereunder, and to have 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: WEEKEND SCHOOL MODE & Internet lecturesFor the Winter 2017 semester this elective subject will be offered in Weekend School mode (ie face to face) supplemented by two lectures conducted over the internet.
By participating in this lecture structure students will be placed in a position where they can organise their study of the material in accordance with the topics that will be covered in detail during the weekend schools.
Students will be assisted in this process by the provision of a detailed synopsis of the subject. This will be posted on the LEC web site.
INTERNET LECTURES
There will be 3 lectures conducted by Internet.
1. Tuesday, 16 May 2017, commencing at 6 PM and concluding at 8:30 PM.
2. Tuesday, 11 July 2017, commencing at 6 PM and concluding at 8:30 PM.
3. Tuesday, 1 August 2017, commencing at 6 PM and concluding at 8:30 PM.
Access to the relevant technology is assumed.
The details of the logistics for these lectures will be advised separately. 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 and an introduction to the key elements of the course.
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 27 May 2017: 8.00am – noon in New Law School Seminar Room 115 (New LSSR 115)
Sunday 28 May 2017: noon – 4.00pm in New Law School Seminar Room (New LSSR 115)
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 &
· of any 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 22 July 2017: 8.00am – noon in New Law School Seminar Room 115 (New LSSR 115)
Sunday 23 July 2017: noon – 4.00pm in New Law School Seminar Room 115 (New LSSR 115)
TOPIC / SECTIONS OF ACLACL: DECEPTIVE TRADE PRACTICES
Misleading or deceptive conduct (con’t) / Part 2 – 1: s 18
Unconscionable conduct;
unconscionable conduct in connection with goods and services
Industry codes (mandatory and voluntary codes) / Part 2 – 2: s 20,
s 21
s 22
Part IVB CCA
Unfair contract terms
Unfair practices
False representations including in relation to land
Other forms of unfair practices / Part 2 – 3
Part 3 – 1:
ss 29, 30,
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, 3rd ed. LexisNexis, 2011
· 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 TPA/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.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on the following date:
Compulsory Assignment / Wednesday 3 July 2017 / (Week 7)ASSIGNMENT QUESTION
To obtain the Competition and Consumer Law assignment question for the Winter Session 2017, please follow the instructions below:
1. Register online with the LEC (see page 24 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.
2. Then go into the Webcampus, select the Course Materials section and click on the link to the assignment questions for this subject.
SAMPLE EXAMINATION QUESTION
Sparkle P/L, Glitter P/L and Radiance (a partnership between Ray Ruby and Crystal Clear) are the 3 largest opal merchants in Australia.
They purchase their opals directly from long term trusted sources, namely each other, opal miners at Lightening Ridge and other opal merchants/jewellers.
They have never experienced any problems.