Trade Practices

The Trade Practices Act 1974 catches conduct and transactions which affect competition and prices, where there is substantial loss or damage, a substantial lessening of competition, affects trade or commerce, where there are contracts, arrangements or understandings which affect the supply or acquisition of goods or services as well as misuse of market power to name but a few. Given the reach of the Trade Practices Act a wide variety of businesses need to be mindful of its application in their commercial environment to ensure best business practice. If a prosecution is lodged or proceedings commenced, you need to seek legal advice to ensure that your interests are properly protected.

Business Lawyers Sydney is able to assist clients as outlined and as follows:

Unconscionable Conduct
Consumer Protection ~ misleading or deceptive conduct
False or Misleading Representation
Advertising and Selling
Harassment and Coercion
Product Safety and Product Information including recall
Conditions and Warranties in Consumer Transactions
Actions against Manufacturers and Importers of Goods
Part VA ~ Products Liability
Enforcement and Remedies
Statutes of Limitation

As part of this landscape, agreements/contracts, disclosure, exclusion clauses, misuse of market power, product information, warnings and a raft of other matters including state legislation have to be considered to ensure that the client’s position is properly considered.

The Trade Practices Act (TPA) which is Commonwealth legislation and its NSW counterpart the Fair Trading Act (FTA) are used for the preservation and enhancement of competition amongst businesses and for the protection of the consumers from the businesses. Federal laws are enforced by the Australian Competition & Consumer Commission (ACCC) and the state laws are enforced by the NSW Office of Fair Trading (NSW OFT). These laws can also be used by businesses and consumers to obtain remedies against those who have infringed these laws.

These laws prohibit anti-competitive behaviours such as:

price fixing - where competitors agree to charge the same or similar price hence there is no actual or real price difference between the competing products.
market sharing - where the competitors agree to share the market on the basis of geography, revenue, customers and product.
boycotts - where the competitors agree not to acquire or refuse to supply goods or service to a business or consumer (primary) and where the competitors agree to prevent another from acquiring or refusing to supply goods or service to a third party (secondary).
misuse of market power - where a very large business uses its market power to the detriment of a smaller competitor.
exclusive dealing - where a supplier of goods or service prohibits the purchaser from dealing with the supplier's competitor including refusing to supply or re-supply.
resale price maintenance - where the suppliers set a price and prevent the business from selling at a different or discounted price.

These laws also protect consumers from behaviours such as:

misleading or deceptive conduct
misleading representations about the future supply of goods and services
false and misleading representations
false representations in relation to land
misleading conduct in relation to employment
not specifying the full cash price
falsely offering prizes
misleading the public as to the nature or characteristics of goods and services
bait advertising
referral selling
accepting payment without intending to supply
making false and misleading statements about work-at-home schemes
harassments or coercion
sending unsolicited debit or credit cards
demanding payment for unsolicited goods or services

The laws also govern whether the products are manufactured in Australia or imported from overseas and enforcement can include:

consumer product standards
warning notices in respect of defective product
voluntary product recall in respect of defective product
compulsory product recall in respect of defective product
emergency orders in respect of defective product

If you believe that you need more information regarding the above or you as a consumer or your business may be affected by anything mentioned above, please consult us.

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