Trade Practices FAQs
Author(s):LAC Lawyers
Publish Date: March 22, 2008
Q. I have been served with a Notice by the ACCC for an infringement. What should I do?
A. Normally a response is required to the ACCC within 21 days of receipt of the notice and therefore clients need to act with all due dispatch. Before responding to the ACCC or any other statutory body involved you need to seek independent legal advice to ensure that you are fully advised as to your rights and obligations before you respond.
Q. What happens where my company finds out that it is manufactured and distributed a defective product?
A. You should seek independent advice to ensure that proper recall notices amongst other things are put in place. You should be aware if injury, loss or damage is occasioned to some person(s) that liability is strict and the normal defences to negligence will not apply.
Q. I have been served with a Notice from the ACCC requesting me to provide documents. What do I do?
A. The Notice must be complied with but you need a lawyer to advise you on your response.
Q. I have recently bought an expensive motor vehicle from a dealership and they said they would include insurance as part of the deal. Subsequently I had an accident and asked the dealership to provide me full particulars of the insurance they had effected. Am I entitled to this information and do I have an action against them?
A. Yes. You are entitled to obtain this information as it formed part of the contract of sale of the new motor vehicle to you. Secondly, it appears they may have been involved in misleading and deceptive conduct and if this occurs it is actionable under the Trade Practises Act.
Q. What is Restraint of Trade?
A. Any contractual term which restricts a person’s freedom to trade or engage in business.
Q. Is it illegal?
Yes. Unless it is proved to be reasonable. To be reasonable, a restraint must be limited as to time, location and extent. For example, in a sale of business context, two years might be reasonable, but five years would almost certainly be not.
Generally, as a matter of policy, the courts do not consider it in the public interest for people to be restricted in their ability to work or carry on a business.
Common types of restraints include Employment agreements, sale of business and franchise agreements.
Q. Does the Trade Practices Act have anything to say about restraints of trade?
A. Yes. The Act provides, in essence, that the doctrine is preserved, but only in so far as it is capable of operating concurrently with the Act.
Practically, this means that restrictions involving conduct prohibited by the Act will be illegal, regardless of whether they would be illegal at common law.
Q. I think I’m being asked to enter into an unfair restraint of trade. What should I do?
A. You should consult a solicitor. If you provide all relevant information about the restraint the other party wants and the circumstances of the case, considered advice can be provided to you.
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