Australian Consumer Law: The Competition And Consumer Act 2010
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Australian Competition & Consumer Commission v Ticketek Pty Ltd (2011) Nature of the Case and the central legal issue Australian Competition and consumer law (ACCC) held proceedings in 2011 against Ticketek Pty Ltd at the Federal Court for contravening with Section 46 of the Trade Practices Act now known as the Competition & Consumer Act (2010) at four instances. Tickettek was alleged for deterring or preventing Lasttix from engaging in competitive conduct in the ticketing related services market when they refused to apply discounted prices that were to be published by Lasttix (a rival ticketing company) & by doing so taking advantage of their substantial market power . The parties agreed to the pecuniary penalty issued by the federal court of $2.5 million on the 22nd December 2011 . Reasons for Choice & Importance of Case
To determine if a particular provision is for liquidated damages or for a penalty, a court must answer two questions: 1.) When the contract was entered into, was it apparent that damages would be difficult to estimate in the event of a breach? 2.) Was the amount set as damages a reasonable estimate and excessive (Clarkson, Miller, Cross, p. 354,
The other legal precedents that were considered by the court to reach to the decision are (i) Ductline Pty Ltd v Arcric Investments Pty Ltd (1995) 32 IPR 419 (ii) Pennant Hills Restaurants Pty Ltd v Barrell Insurance Pty Ltd (1981)145 CLR 625 (iii)Ebrahimi v Westbourne Galleries Ltd (1973) AC 360. The case of Phillips v Lamdin (1949)2 KB 33 was cited by the judge. It relied on the concept of the fiduciary duty of the directors as outlined in the Corporations Act. The court observed that the first defendant had fiduciary duties towards the plaintiffs and the duty not to benefit self at the cost or expense of other partners, the beneficiaries of the company or the company itself is included in the fiduciary duty. It was observed by the court that there was another breach of fiduciary duty by the first defendant towards the first plaintiff when he locked him out of the premises Final decision of the court:
Part 2 Occupiers' liability in Australia The defendant in this case , Xerox Supermarket , has an very important role which is identified by the Australia law as an occupier. Hence , I will try to refer to the occupiers' liability law and relative regulation ,especially from the passed legislation of Western Australia , South Australia and Victoria . Actually , the occupiers' liability law still obeys the general principles of negligence like standard of care and proper criterion . However , it can provide the judger a more practical and accurate view on the possible liability of the supermarket as a typical premise of retailers .
Coca-Cola Co. v. Koke Co. of America, 254 U.S. 143 (1920) U.S. Sup. Ct. Facts: 1886 marked the invention of a caramel-colored soft drink created by John Pemberton. Coca-Cola got its name after two main ingredients, coca leaves and kola nuts. The Coca-Cola Company is suing Koke Company of America from using the word Koke on their products. They believe Koke Company of America is violating trademark infringement and is unfairly making and selling a beverage for which a trademark Coke has used.
Businesses practice unfair sales tactics that take advantage of consumers. PART III: I. The Federal Trade Commission does not have adequate regulations. The FTC does not have adequate regulations regarding misleading food/drink product labels. Dietary Supplements are severely lacking in regulation and policing power.
The consumers has complete right against the distributor for the purpose and quality they have mentioned for their product ( Under part 2-5 of Australian Consumer law, ACL). The term manufacturer doesn't mean that it should be the actual manufacturer alone, it also includes the distributor and other entities. For example, the importer is also included as a manufacturer and has equal right as that of the manufacturer. Both of them guarantees that the goods that they produce are of acceptable quality, have been accurately described, satisfy any manufacturer's expressed warranty, have parts and repair facilities reasonably available in reasonable time.
Burden of Proof: Interstate Commerce Commission versus Railroads Railways were a unique business organization in 1800’s America, as they spanned across states. When state courts would file suits against them, reasonable claims would often be overturned due to lack of control over interstate commerce. In response to a case known as Wabash et al vs. Illinois, the federal government stepped in, as it possessed the power to regulate interstate commerce on a collective level; and thus, the Interstate Commerce Commission was created in 1887. The ICC was designated to prevent railroad companies from creating discriminatory rates, rebating, and colluding.
In conclusion, it can be said that firms operating under monopolistic competition have distinct features which separates it from other market structures such as perfect competition and oligopoly, some of which are many sellers offering differentiated products to consumers, whereby, the firms have power, to a certain extent, to influence their prices and there are low barriers to entry and exit. A good example of a monopolistically competitive market is the retail clothing market in Australia which is illustrated and discussed in detail above. The behavior of the clothing stores, in terms of their extensive advertising, customer service and other forms of differentiation will assist the stores to survive in a highly competitive market.
Australian Competition and Consumer Commission v Hewlett-Packard Pty Ltd The Australian Competition Commission (ACCC) enforces rights and legislation which are in place to protect consumers against unfair trading practices; such as, say, false product marketing and vending faulty merchandise. Hewlett-Packard Australia, a well-known computer technologies company was found in breach of the Australian Consumer Law, set out in schedule 2 of the recently renamed Competition and Consumer Act 2013. The company was found guilty of false and misleading representations of computer products as well as retailing products that were not of merchantable quality. Given this, HP was ordered to pay a $3 million penalty as well as provide an avenue for consumer redress. Hewlett-Packard was duly taken to court by
Before the requirement of causation, common law and equity cannot be said to have been completely untouched by each other. Both systems were anchored on the fundamental principle that claimant is to be put in the position he would have been had the breach not occurred. Furthermore, the primary obligation of both systems is performance of the trust or contract and the secondary obligation is to pay damages or compensate for loss. However, common law can be distinguished on the basis that the aim of the remedy is to remove the loss caused by the breach while in equity, equitable compensation aims to eradicate the breach instead. Furthermore, no fault was required to claim for a remedy in breach of trust.
A holder of any Intellectual Property acquires a monopolistic right over his intellectual properties. These rights are awarded by the state and the user can exercise these rights to restrain others from using them without his consent, any violation of such rights leads to infringement. Antitrust laws, in turn, ensure that new proprietary technologies, products, and services are bought, sold, traded, and licensed in a competitive environment. In today‘s marketplace, new technological advancements are constantly replacing those that came before, as competitors are driven to improve their existing products or introduce new products in order to maintain their market share. The competition law aims to prevent the misuse of dominant position while
The Productivity Commission has identified the key drivers that encourage the unduly risk-averse attitude of directors, they are namely the current insolvent trading laws, the uncertainty regarding to the precise moments of insolvency. It can be argued that S588H provides defenses to relief directors from the breach of duties but the section only provides statutory defenses that are only applicable to contraventions of civil penalty but not a criminal offence, thus these defenses have brought disincentives to directors to undertake appropriate
If there is, then the type of liability arising is also important. Generally, there are two varieties of liability which Is strict liability that is liability arising due to a state of affairs without the party at breach necessarily being at fault and liability for negligence liability arising due to fault. The courts have a tendency of requiring the party relying on the clause to have drafted it properly so that it exempts them from the liability arising and if any ambiguity is present, the courts usually interpret it strictly against the party relying on the clause. Exclusion clauses are clauses, usually written down that say that one party to the contract will not be responsible for certain happenings. These clauses can be valid, as long as they have been properly included in the contract and are not contrary to law.
Current measures have mainly been established using mainly ex-post regulation rather than ex-ante regulation. Deceptive commercial speech in the U.S is regulated by the Federal Trade Commission. The U.S constitution’s first amendment includes the freedom of speech. This has made it difficult for lawmakers develop commercial speech regulation because they are in fear of breaching this constitutional right. However, if businesses believe they have been a victim of deceptive advertising they can bring an action under s.43(a) of the Lanham Act.
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