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/ Diploma in Law /LEGAL PROFESSION
ADMISSION BOARD
/ /LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
25 COMPETITION AND CONSUMER LAW
WINTER SESSION 2016
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
Assessment / 2-3
September 2016 Examination / 3
Lecture Program / 3-4
Texts and Materials / 4-5
Compulsory Assignment / 5
Assignment Question
Sample Examination Question / 5-6
6
Case List / 7-9
LAW EXTENSION COMMITTEE
/WINTER 2016
25 COMPETITION AND CONSUMER LAW
COURSE DESCRIPTION AND OBJECTIVES
The Competition and Consumer Act (Cth) 2011 ("CCA”), incorporating the Australian Consumer Law ("ACL"), affects every aspect of commercial and consumer life. The CCA/ACL (previously titled the Trade Practices Act 1974) brings together a number of national, state and territory laws to ensure consistency in the rights of consumers. The CCA contains prohibitions pertaining to:
· restrictive trade practices
· deceptive trade practices; and
· product liability.
The restrictive trade practices provisions prohibit:
· collective/collusive practices (via contracts, arrangements or understandings) in the form of cartels and the creation of exclusionary provisions; and
· unilateral business practices 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 by persons in trade or commerce. “Persons” include body corporates (e.g. businesses) and body politics;
· 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 and 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; and
· enforcement/penalties/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.
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.
ASSESSMENTTo be eligible to sit for the Board’s 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 with the Board. 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 Legal Profession Admission Board (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 Law Extension Committee (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 2016 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. Please direct all enquiries in relation to examinations to the LPAB.
Lecture PROGRAMME: WEEKEND SCHOOL MODEThis elective subject will be offered only in Weekend School mode for the Winter 2016 Semester.
The lecture programme should be read in conjunction with the synopsis of the subject.
LECTURES ON WEEKEND SCHOOL 1 (28-29 May 2016)
Saturday 28 May 2016: 8.00am – noon in New Law School Seminar Room 115 (New LSSR 115)
Sunday 29 May 2016: noon – 4.00pm in New Law School Seminar Room 115 (New LSSR 115)
TOPIC / SECTIONS OF CCAIntroduction to the CCA/ACL.
Constitutional issues; Extended jurisdiction of the CCA;
Extension 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 markets / s 4E
CCA PART IV: RESTRICTIVE TRADE PRACTICES
Cartel Conduct
- Offences
Contracts, arrangements or understandings that restrict dealings or affect competition
Exclusionary provisions / Division 1
s 44ZZRF-RK
s 45
s4D
Misuse of:
· market power &
· of any substantial share of a market / s 46
Exclusive dealing / s 47
Resale price maintenance
Mergers and acquisitions / s 48 and Part VIII
s 50
LECTURES ON WEEKEND SCHOOL 2 (23-24 July 2016)
Saturday 23 July 2016: 8.00am – noon in New Law School Seminar Room 115 (New LSSR 115)
Sunday 24 July 2016: noon – 4.00pm in New Law School Seminar Room 115 (New LSSR 115)
TOPIC / SECTIONS OF ACLACL: DECEPTIVE TRADE PRACTICES
Definitions
Representations as to future matters: promises and predictions
Misleading or deceptive conduct / Chapter 1 ss 2, 3
s 4
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 / Part 2 – 3
Part 3 – 1: ss 29, 30, 33, 34, 35, 47, 48, 50
ACL: PRODUCT LIABILITY
Statutory consumer guarantees
Action against suppliers of goods failing to meet certain criteria
Liability of manufacturers for goods containing a safety defect / Part 3 – 2, Division 1
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 contravention" / CCA ss 75B, 76, 79, 85
CCA ss 80, 81, 82, 87
ACL Chapter 5
TEXTS AND MATERIALS
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.
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, 38th ed. Thomson Reuters, 2016
OR
· Steinwell, Annotated Competitions & Consumer Legislation, 2016 ed. LexisNexis
Recommended acquisition: 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 13 July 2016 / (Week 8)ASSIGNMENT QUESTION
To obtain the Competition and Consumer Law assignment question for the Winter Session 2016, please follow the instructions below:
1. Register online with the LEC (see page 26 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.
Agreements are faxed or emailed. They all contain a standard disclaimer clause which includes the words “.....the purchaser takes full responsibility for making all necessary inquiries regarding the opals as ordered. The Supplier offers no warranty”.
On 15 January at 8.30 am, Radiance offered both Sparkle and Glitter, by email from Clear:
“2 lots of 10 rare, flawless, Lighting Ridge black opals ….At bargain price of $1.5 million per lot. Acceptance and electronic transfer payment required by 11.30am”
Radiance had bought the opals from “Shifty” Spanah at 8am for $200,000 in cash. Ordinarily no reputable opal retailer would deal with Spanah.
By email, Sparkle immediately confirmed the offer and agreed to the purchase of one lot (10 opals). At 10.00am, Sparkle electronically transferred $1.5 million into Radiance’s account.
Glitter requested confirmation that the opals came from an impeccable source. Clear sent a fax which stated “this is a once in a life time offer. The opals are exquisite. If it wasn’t for the current credit crunch we would keep them as an investment”.
Glitter proceeded to buy the second lot of 10 opals, at about 10.45am.
After paying $200,000 to Spanah and receiving $1.5 million from Sparkle but before receiving $1.5 million from Glitter, Clear, whilst reading “breaking news” on the web, saw that a Lightning Ridge miner had reported the theft of a bag of black opals on 13 January.
The police have recovered the black opals from Sparkle and Glitter and intend to return them to the opal miner. Spanah has disappeared.
About half of the opals supplied to Sparkle and Glitter turned out to be of second-rate black opals from Brazil, worth a mere fraction of the genuine article.
Advise Sparkle and Glitter as to their rights against Radiance.
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CASE LIST
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1. CONSTITUTIONAL ISSUES, EXTENDED JURISDICTION, DEFINITIONS
R v Federal Court of Australia: ex parte W A National Football League (1979) 143 CLR 190