Legal Writing and Skills - Essence Pty Ltd - Assignment Example

Legal Research & Writing Name Course Lecturer Date Exercise 1 Facts and Issue Identification Issued raised The Essence Pty Ltd is a Victorian company that manufactures and supplies skin care products. A retailer in Adelaide has raised a complaint that Essence Pty Ltd is actively preventing the retailer from discounting any of their products. Specifically, the company cautioned the retailer from carrying out any sales of their products at a price that is less than that which is specified by the company. The company maintains that its products should not cheapen so that it can maintain the positioning and brand image of the products. The company went ahead and withheld supplies for two months as the retailer had gone ahead and sold the products less the specified price. Area of law that concerns the problem The Australian Competition and Consumer Commission (ACCC) is mandated with promoting fair trade and competition in markets so as to benefit businesses, consumers and the community. In addition, it regulates national infrastructure services. However, ACCC primary role is to ensure that the businesses and individuals comply with Australian fair trading, competition, and consumer protection laws. This includes the Competition and Consumer Act 2010. With the above understanding of its responsibilities, the ACCC is therefore, mandated to take up this case in order to establish whether there is a need for legal action to be taken against the Essence Pty Ltd. If legal action will be taken against the company, it is expected that ACCC will give remedies against the company. Search terms Retail price maintenance Pecuniary penalties Penalties Australian Competition and Consumer Commission Exercise 2: Book research Research books using Google books; keywords include resale price maintenance, ACCC, competition. Some words are useful than others as they give sources that give the required information. A book is useful in the research if it is able to describe the laws that are related to the case. In addition, it gives remedies for legal any legal action to be taken, if need be. Three books Martyn Taylor, International competition law: a new dimension for the WTO? (Cambridge Press, 2006) Gordon Mills, Retail pricing strategies and market power (MUP, 2002) Nicole Morandin, Australia competition and consumer legislation 2011(CCH Australia Limited, 2011) Part VIII of Nicole Morandin, Australia competition and consumer legislation 2011(CCH Australia Limited, 2011) describes the resale price maintenance. Section 96 constitutes act that engage in resale maintenance, 96 (1) maintains that a supplier engaging in the practice is involved in an act that is referred to those found in paragraphs of subsection (3). 96 (2) states that a person, that is the supplier, engages in the presented action if the person act according to the subsection (3)and the second person named in the same paragraph refers to the corporation. 96 (3) gives the specific acts of resale price maintenance and it is referred to subsections which include; the supplier alerting the second person (retailer in the presented case) that the suppliers will supply the goods to the (retailer) if the second person will accept to not resale the good at a price less than that specified by the supplier. the supplier attempting to induce or inducing a retailer or second person not to sell the goods at a price less than specified, goods supplied to the retailer indirectly or directly, will have been obtained from the supplier. the supplier offering or entering into an agreement for supplying the goods to the retailer or other second person, on the agreed terms, the retailer is not expected to sale goods less the price specified by the supplier. the supplier may withhold the goods to the second person (retailer)for the reason that the second supplier has; I. not agreed as indicated in the first paragraph II. sold or likely to sell the goods which may have obtained from the supplier or from a second person who has obtained from the supplier and resale the goods at a price that is less specified by the supplier1. the supplier withhold the goods to a retailer because the third person who wishes or may have obtained the goods directly or indirectly from the second person; I. has not accepted or agreed to sell the obtained goods at a price that is specified by the supplier II. is likely to sell or has sold goods supplied to her or him by a second person (retailer)at a price which is less than that specified by the supplier or at a price that is below that which the goods are expected to be sold. The supplier using a statement of the price in relation to the goods supplied, that is likely to be decoded as that below the specified price by the second person2. Section 3 Legal Encyclopedias The research method used in this case is browse. Information was browsed in the Laws of Australia website. The case words used were resale price acts, good supplier acts, and ACCC. As earlier seen some words were more successful than others as they give sources that had the needed information. In the research, the information was limited to the current years in order to obtain the current acts in regard to the case study presented. The resources were significant as they give a deeper understanding of the case in relation to the Laws of Australia. In the Laws of Australia, the portion that is useful in relation to the presented case is that Competition and Consumer Act 2010. Under this Act various laws are given that suppliers and businesses people are expected to adhere in relation to competition in the market. The laws are related to the issues dealing with price fixing, minimum resale price maintenance, and exclusive dealing. Under the resale price maintenance which is related to this case, prohibition against this act aims at ensuring that competition goes down as a result of restraints that are imposed by the suppliers or secondly suppliers of services or goods. However, they are exception to this prohibition including agency arrangements or agreements. The parties involved in the illegal action may be subjected to penalties by the court. Exercise 4 legislation Legislative database searched in this exercise is AustLII, the Competition and Consumer Act 2010, introduced in 2010 has not been amendment so far but it has been used to solve several cases related to the presented problem. This include the ACCC v IGC Dorel Pty Ltd (2010) FCA 1303 (10 December 2010) in which the IGC Dorel admitted to have committed an illegal action in regard to resale price maintenance. The company agreed with the ACCC on the appropriate orders which included; the company wants the retailers to make a possible margin and the products should be discounted and if discounted, it will be liable for the loss of the range. As the company is serious about keeping the margin and fail to do so, the company will withheld the suppliers from the retailers. The company demands that the products should sold at the retail recommended price as it is the company that designed and therefore, there is no need for another party to lower its value. Given that the terms were agreed on, no penalties were given as remedy for the action3. This case is relevant given the fact that it is related to the case study presented; that is, on resale competition and discounting of products done by the retailer but against the will of the suppliers. Exercise 5 Case Laws Westlaw AU: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) (2007) 161 FCR 513 CaseBase : Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 AustLII: Australian Competition and Consumer Commission v Navman Australia Pty Ltd [2007] FCA 2061 (21 December 2007) The above cases are relevant as they are also related to the presented case. In addition, the fall under the same Act of Laws in Australia. The cases were similar in the three databases. This may be attributed to the fact that the databases are based in the same country. However, the databases varied in their displays. Some of the cases displayed fall report on the case while others were summary of the cases. Exercise 6 Journal articles Databases: AustLII, Westlaw AU, CaseBase, Lawlex Arthur, Thomas C., The Core of Antitrust and the Slow Death of Dr. Miles. SMU Law Review, Vol. 62, 2009; Emory Law and Economics Research Paper No. 9-46; Emory Public Law Research Paper No. 9-68. (SSRN) Bennett, Fletcher, Giovannetti and Stallibrass, 'Resale Price Maintenance: Explaining the controversy, and small steps towards a more nuanced policy' (30 January 2010) (MPRA) Brennan, Tim, RPM as Exclusion: Did the U.S. Supreme Court Stumble Upon the Missing Theory of Harm? (July 16, 2008). (SSRN) Briceño Moraia, Linda, Resale Price Maintenance and Free Riding - New Insights in the U.S.A. Compared to the European Approach (November 5, 2009). GIURISPRUDENZA COMMERCIALE, Milan, Giuffrè, Forthcoming. (SSRN) Brunell, Richard, Overruling Dr. Miles: The Supreme Trade Commission in Action. Antitrust Bulletin, Vol. 52, Nos. 3-4, 2007. (SSRN) Dimitropoulos, Dimitrios, Sticks and Carrots: Is Resale Price Maintenance Necessary? (December 17, 2009). (SSRN) Database as a research tool provide the required information of a particular topic. However, the fact that one has to have narrow down to terms that may assist in getting the required information limits its effectiveness as a research tool. However, the information one gets even after narrowing down is useful even though some information are in summary form. There are advantages of using journals when compared to textbooks; firstly, with journals it is easier to find them on the databases as compared to the books, they are also divided according to years and therefore, one is able to get the latest. Secondly, the journals have references from where the source of information has been obt Hoained (it is clearer than the books). Thirdly, the journals are well detailed and structured in a format that one may clearly understand. Exercise 7 Reflection and critique It is important to note that not all terms directed to the source that had the needed information. However, after narrowing down to specific terms, the information required was obtained. Some searches did not provide satisfactory result as they did not directly cover the intended information. There were some problems in getting some information as some sources were classified and as such it was impossible to access the sources. Legal searching is not a linear procedure. It calls for constant review, re-evaluation and reflection in order to obtain the satisfactory work. Read More