B2B Transactions Captured by the Australian Consumer Law

Written by rouse_admin on April 3, 2013

The Australian Consumer Law (ACL) captures many business-to-business (B2B) transactions.

BUSINESS AS ‘CONSUMER’ UNDER THE ACL

Under the ACL, your business is a ‘consumer’ if it purchases:

goods or services at a price which does not exceed $40,000;
goods or services that are ‘ordinarily acquired for personal, domestic or household use’ (regardless of the cost of the goods or services); or
a vehicle or trailer.

The first and third limbs of the test leave little room for interpretation, but the meaning of goods or services ‘ordinarily

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Inescapable Guarantees in Australian Consumer Law

Written by rouse_admin on March 25, 2013

The Australian Consumer Law (ACL) is an exceptionally broad law that bolsters consumer rights.

The ACL guarantees certain standards for goods and services sold to consumers, whether or not a customer and seller have agreed to those standards.

SCOPE OF THE ACL

The ACL applies to:

any type of goods or services costing up to $40,000;
goods or services costing more than $40,000 which are normally used for personal, domestic or household purposes; or
a vehicle or trailer (the cost of the vehicle or trailer is

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Franchising Code of Conduct 2013 Review

Written by rouse_admin on March 12, 2013

There are approximately 73,000 franchise units in Australia, which contribute $131 billion to Australia’s economy, and directly employ more than 400,000 people.  The legislation and codes that regulate the industry are regularly reviewed.

THE REVIEW

A review of the Franchising Code of Conduct (Code) is underway to analyse the effectiveness of amendments made to the Code in 2008 and 2010 (Review). The Review was announced by the Minister for Small Business, Brendan O’Connor, and will be conducted by Mr Alan Wein.  Mr

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Licenses Over Data: A Case Study

Written by rouse_admin on March 9, 2013

When you upload data to an online service, there is almost always a clause that deals with intellectual property rights over the data that you’re uploading.

Services often use wording about users “retaining ownership of content”, but it’s important to note that retaining ownership is cold comfort if you give a service the right to do almost anything it wants to do with the data.

WHEN IT MATTERS

The issue of intellectual property rights in data that you upload is important in a

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Calderbank Offers and Costs in Litigation

Written by rouse_admin on February 26, 2013

The recent Queensland Supreme Court case of Mansi v O’Connor is a pertinent reminder of the risks involved in not accepting a reasonable offer to settle before trial.

THE FACTS

This case involved a personal injury claim brought by Mr Mansi against several defendants.  A week before trial, the defendants put a Calderbank offer to Mr Mansi to settle his claim for $400,000 plus costs.  Mr Mansi rejected what turned out to be a very generous offer, and he received a judgement

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When is a Facebook Post Misleading or Deceptive Conduct?

Written by rouse_admin on February 5, 2013

A recent decision by the Federal Court highlights the caution that businesses should exercise before making pronouncements on social media.

In Seafolly Pty Ltd v Madden, a legal battle ensued between two swimwear labels.  Madden (the designer of Whites Sands swimwear), noticed similarities between her swimwear designs, which Seafolly had had access to, and those released by Seafolly later that season.

Ms Madden posted messages on Facebook that stated both implicitly and explicitly that Seafolly had copied her collection, and then emailed

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Ensuring that Terms of Use are Binding

Written by rouse_admin on February 1, 2013

As discussed here, the terms and conditions of use (Terms) for your website put limits on your legal liability.  The way that users of your site agree to your terms may make a difference to how binding those Terms are.

THE NOTICE PRINCIPLE

Courts in Australia have not yet ruled directly on what methods of agreement ensure that Terms are binding.  That said, courts have indicated that there are methods of agreement that are less risky than others.

In order to make your terms and

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How not to Spam Your Customers

Written by rouse_admin on January 24, 2013

Online advertising is valuable, a direct line into the lives of your customers. On the other hand, the Spam Act 2003 (Act) imposes severe penalties on sending spam.

WHAT COUNTS AS SPAM?

Any commercial electronic message sent without the consent (explicit or inferred) of the recipient will breach the Act.  The categories of messages include emails, mobile phone SMS and MMS and instant messaging.

In order to constitute spam, a message must have a commercial purpose.  Be particularly careful that you are not sending an unwanted

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Unfair Online Contracts

Written by rouse_admin on January 10, 2013

If your business uses online contracts, it is important to ensure that they are “fair”, or they may be ruled invalid by a court.

AUSTRALIAN CONSUMER LAW

In January 2011, the Australian Federal government brought into effect laws that seek to make unfair terms in standard form consumer contracts void. Particularly in the case of online agreements, if the terms are long, confusing, not reasonably transparent, inconsistent or go beyond what is “reasonably necessary” to protect your business interests, the court may

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Employment Update: The Fair Work Amendment Act 2012

Written by rouse_admin on January 10, 2013

A number of changes to the Fair Work Act 2009 came into effect on 1 January 2013 via the Fair Work Amendment Act 2012.

Fair Work Australia is now called the Fair Work Commission (FWC), and the changes are in relation to unfair dismissals, general protections and enterprise agreements.

Some of these changes include:

an increase in the time limit for lodging unfair dismissal applications, from 14 days to 21 days;
providing the FWC with further powers to dismiss unfair dismissal applications and to

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