The Australian Consumer Law

It applies as a law of the Commonwealth in the manner provided for in Part XI of the Act. Section 131, which is within Part XI, provides:

The ACL also applies as a law of the States and Territories in the manner provided for in Part XIAA of the Act, namely where those States and Territories have passed their own application legislation. The Queensland application legislation is the Fair Trading (Australian Consumer Law) Amendment Act 2010 (Qld).

Thus, in its application as a law of the Commonwealth, the ACL is confined to the conduct of corporations. However, in its application as a law of the States and Territories, it applies on a wider basis, reflecting the wider legislative powers of the States and Territories.

This legislative scheme was designed to give effect to recommendations of the Productivity Commission that a new generic consumer law, based on the consumer protection provisions of the TPA and augmented by provisions rendering void unfair contract terms, be introduced and applied uniformly across all Australian jurisdictions.1

Parts IVA, V, VA and VC of the TPA have been repealed and replaced by new provisions within the ACL. In some cases, significant amendments have been made.

The ACL is structured as follows:

(a) Chapter 1 is an introductory chapter which includes definitions and interpretive provisions.

(b) Chapter 2 contains general protections for consumers, including:

(c) Chapter 3 contains specific protections for consumers, including:

(d) Chapter 4 contains provisions imposing criminal sanctions for some prohibited conduct.

(e) Chapter 5 provides for enforcement and remedies.

This paper does not attempt to analyse the whole of the provisions of the ACL.3 Nor does it focus upon familiar concepts which have been migrated over from the TPA without substantive change. Rather, it examines two new features of the legislation which will be of significance in practice, namely:

(a) a new provision concerning representations with respect to future matters;

(b) the new provisions concerning unfair contract terms.

Representations with respect to future matters

As French CJ and Kiefel J observed in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 84 ALJR 644 at [5]:

That statutory prohibition now appears in s18 of the ACL.

According to the Explanatory Memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth):4

Whilst the substance of the drafting of s18 might not have changed, there have been some important changes in the drafting of related provisions concerning representations with respect to future matters.

Section 51A of the TPA had dealt with representations with respect to future matters in the following terms:

Over the last decade, differences of opinion emerged as to the effect of this section.

The ACL, in s4, seeks to resolve those differences.

The position prior to the introduction of the ACL

The nature and extent of the onus

The first point of difference that emerged in the cases centred upon the nature and extent of the onus cast by s51A(2).

There was a substantial body of authority to the effect that s51A(2) cast upon the representor the legal or persuasive onus of establishing reasonable grounds, such that failure to discharge that onus would necessarily result in the representation being deemed to be misleading.5 This view of the section seemed to have been approved by Keane JA, with whom Williams JA and Atkinson J agreed, in Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [126]-[128].6

However, an alternative view was also emerging.

In Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276 at [46], Emmett J had said:

This approach was also adopted by French J in Fubilan Catering Services Pty Ltd v Compass Group (Aust) Pty Ltd [2007] FCA 1205 at [545].

The issue was considered by the Full Court of the Federal Court in McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230. Allsop J, with whom Emmett J agreed, said (at [191]-[192]) that the section merely required:

Stone J refrained from deciding the question, saying that its resolution was not essential to the disposition of the case (see [71] ff).7

In reaching his conclusion, Allsop J sought (at [189] ff) to reconcile his views with Keane JA’s reasons in Downey v Carlson Hotels. His Honour considered that, properly understood, Keane JA’s views were consistent with his own. However, if that were not correct and Keane JA had held that s51A(2) effected a reversal of the legal and persuasive onus of proof, then Allsop J said he would be driven to the respectful view that Keane JA was plainly wrong.8

The decision in McGrath was thought by some to have settled the question.9

However, conflicting views were still being expressed by judges at first instance.10 And, in the Queensland Court of Appeal, reference was still being made to the “debate as to whether there is a persausive onus placed on the on the [representor] by s51A(2)”.11

Evidence tendered by the representee

Another question which arose was whether the representor could rely upon evidence tendered by the representee in order to establish the existence of reasonable grounds.

Section 51A(2) was expressed in terms that suggested that the representor had to adduce (tender) the evidence to the contrary (“the corporation shall, unless it adduces evidence to the contrary, be deemed …”).

This was how Keane JA appears to have seen the matter in Downey v Carlson Hotels.12 His Honour held (at [129]) that s51A(2) was not engaged because:

On the other hand, in Fubilan at [545], French J expressed the view that a respondent may rely upon evidence called by an applicant which answers the description “evidence to the contrary”.13

A substantive defence negativing misleading or deceptive conduct?

There were dicta to the effect that s51A(2), by negative implication, had the effect that, if evidence of reasonable grounds for making a representation with respect to a future matter was adduced, then that representation could no longer be taken to be misleading for the purposes of s52.14

However, there were also cases where it had been suggested that, even where reasonable grounds were shown, a plaintiff may yet make out misleading or deceptive conduct, s51A merely being one possible route to that conclusion.15

Accessory liability

Questions also arose as to how, if at all, s51A applied as against those alleged to be liable as accessories.

Ultimately, it was held that s51A had no application.16 The reasoning was explained by Emmett J in Australian Competition and Consumer Commission v Universal Sports Challenge Pty Ltd [2002] FCA 1276 at [43]-[45] as follows:

In the present case, [the principal contravener] is no longer a party to the proceeding because, as I have said, the proceeding has now been dismissed as against [it]. Accordingly, it is no longer possible for [the principal contravener] to adduce any evidence in the proceeding. On one view, if s51A(2) applies as against [the accessory], it would give rise to an irrebuttable presumption so far as he is concerned. That is to say, since [the principal contravener] cannot adduce evidence to the contrary, it is deemed, as against [the accessory] not to have had reasonable grounds for making any relevant representation …

One view of s51A is that it provides that a corporation is deemed, as against any party to a proceeding, not to have had reasonable grounds for making a representation unless that party adduces evidence to the contrary – see King v GIO Australia Holdings Ltd [2001] FCA 308 para [28] – para [30]. That, however, is not what the section says. There could well be good policy reasons for imposing on a person who makes a representation with respect to a future matter the evidentiary onus of demonstrating that the representation was not misleading. It is a different matter altogether, however, to impose such a burden on a person who did not make the representation, albeit a person who was knowingly involved in the making of the statement.

That is a good reason for construing s51A as giving rise to a deeming only as against a principal contravener of the Act. That is to say, it does not have any relevance as regards a claim against a person who is only alleged to have been involved in or to have been a party to a contravention by another person. That is the present case.

Section 4 of the ACL

Section 4 of the ACL provides:

(1) If:

(a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

the representation is taken, for the purposes of this Schedule, to be misleading.

(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

(a) a party to the proceeding; or

(b) any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

(b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

(4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:

(a) a misleading representation; or

(b) a representation that is misleading in a material particular; or

(c) conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

The language of the section thus differs from the language of the former s51A in a number of important respects. And the differences in language were designed to address the four matters identified above.

First, the amendments clarify that the section does not have the effect of imposing a legal or persuasive burden which must be discharged by the representor in order to avoid the deeming effect of the provision. This follows from s4(3)(b).17 Thus, the representor bears only an evidential burden,18 being the burden of pointing to “evidence … to the contrary”. Such evidence must actually tend to establish or admit of the inference that there were reasonable grounds for making the representation.19 Once such evidence is adduced, the deeming effect of the section is avoided and the question of reasonable grounds will then be determined on the balance of probabilities on the whole of the evidence.

Secondly, the amendments suggest that the representor may rely upon evidence tendered by the representee as being “evidence … to the contrary”. Subsection (2) no longer contains the expression “the corporation shall, unless it adduces evidence to the contrary, be deemed …”. Rather, it contains the expression “unless evidence is adduced to the contrary” — an expression which studiously avoids identifying any particular party as the party by whom the evidence must be adduced.

Thirdly, the amendments make clear that the section does not, by negative implication, mean that if evidence of reasonable grounds for making a representation with respect to a future matter is adduced, then the representation can no longer be taken to be misleading. This follows from s4(4).20

Fourthly, the language of s4(2) is designed to enable the provision to operate as against accessories even where the principal contravener is not a party to the proceedings.21 The omission of the expression “the corporation shall, unless it adduces evidence to the contrary, be deemed …” is again important here. Under the new provision, “evidence … to the contrary” may be adduced by anyone, including the accessory, thus removing one of the considerations underpinning Emmett J’s objection to the application of the section to accessories. Further, the section now applies expressly to representations made by a party to the proceeding or by “any other person”.

Unfair contract terms

The common law, and indeed the unconscionable conduct provisions of the TPA, would not operate to unsettle contractual rights and obligations because of complaints founded upon “the mere terms of the contract itself”.22 They tend to focus rather upon the circumstances in which the contract was made. If a contract is validly made, the “unfairness” of its terms is not generally apt to provide a ground for intervention.

This has led some to draw a distinction between procedural and substantive unfairness, contending that the existing law addressed the former but not the latter.23 This is true in a sense. However, the question of substantive unfairness often looms large in the application of traditional doctrines, where both procedural and substantive considerations tend to become intertwined. It is just that the substantive unfairness of contractual terms is not, on its own, generally sufficient to enliven those doctrines.

Some regard this as a substantial defect in the law.24 According to Associate Professor Zumbo:25

Thus some have welcomed the enactment of the unfair contract terms provisions which now appear in Part 2-3 of the ACL,26 with others suggesting that the reforms should be taken even further.27

On the other hand, Justice Heydon, writing extra-judicially, has stated:28

FA Hayek regarded it as essential to the rule of law that it be possible to foresee with fair certainty the outcomes of the relevant rules. He thought this ideal had been attained in the West, and that this was the greatest contribution to the prosperity of the West. If he was correct, Pt 2-3 derogates from the rule of law, and its existence is likely to be damaging to national prosperity.

The terms of Part 2-3 were based loosely on Part 2B of the Fair Trading Act 1999 (Vic) and the Unfair Terms in Consumer Contracts Regulations 1999 (UK). In some respects, cases decided under these regimes may assist in resolving questions posed by Part 2-3.29

The central provision

The central provision is s23(1), which provides:

A term of a consumer contract is void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

If a term is rendered void by this provision, the contract will nevertheless continue to bind the parties if it is capable of operating without the unfair term: s23(2).

Further, conduct is not taken to contravene the ACL merely because of the application of 23(1): s15(a). That is, the mere inclusion of a term which falls within s23(1) will not amount to a contravention of the ACL. That makes it clear that the mere application of s23(1) does not give rise to the remedial consequences of contravention set out in Part 5 of the ACL. However, s250, which is within Part 5-2, provides that a court may declare a term of a standard form consumer contract to be an unfair term upon the application of a party to such a contract.

Contracts within the provision

To fall within s23, the contract must be both:

(a) a “consumer contract”; and

(b) a “standard form contract”.

Consumer contract

The expression “consumer contract” is defined in s23(3) as follows:

This definition:

Professor Carter has observed that this definition:

Standard form contract

The expression “standard form contract” is not defined in the ACL.

However, s27(1) creates a rebuttable presumption that a contract is a standard form contract where that is alleged by a party to a proceeding.

Section 27(2) then provides that:

In broad terms, these provisions have been described as designed to catch contracts which are prepared by one party, which are not the subject of negotiation, and which are offered on a “take it or leave it” basis.32

Excluded terms

Not all terms of standard form consumer contracts are subject to s23.

Section 26(1) provides:

Analogous provisions in the UK Regulations have been the subject of decisions of the House of Lords in Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 and the Supreme Court in Office of Fair Trading v Abbey National plc [2010] 1 AC 696.

The provisions broadly corresponding with subsections 26(1)(a) and (b) have been described as reflecting:

The rationale for excluding terms dealing with these central matters is that they are the matters one may expect a consumer to focus upon and readily understand in deciding whether to enter into a particular contract.34 The exclusionary provisions have been described as being of:

The regime is thus concerned to strike down other important, though less obvious, terms which have been described variously as “incidental”,36 “ancillary”37 and “subsidiary”.38

Care must be taken in the use of such terminology. As Lord Walker said in Office of Fair Trading v Abbey National plc [2010] 1 AC 696 at [46], such descriptions:

may all be of some assistance but it is important, in considering provisions which apply across an extraordinarily wide range of consumer contracts, to treat them with caution.

One thing, though, seems clear. It is that the object of the regime tells against a broad interpretation of the exclusionary provisions.39

So, how have these exclusionary provisions been applied?

In Director General of Fair Trading v First National Bank plc [2002] 1 AC 481, it was held that a provision in a contract between banker and customer for the payment of post-judgment interest was not excluded from review as it applied only in the event of default and so could not be characterised as a provision as to the adequacy of price or remuneration as against the goods sold or supplied within the meaning of the UK Regulation.

By contrast, in Office of Fair Trading v Abbey National plc [2010] 1 AC 696, it was held that a provision in a contract between banker and customer for the imposition of fees in the event that the customer were to overdraw on a personal current account was excluded from review because it did relate to the adequacy of price, etc. In this regard, the Supreme Court regarded it as significant that such charges amounted to about 30% of the banks’ total revenue stream from current account customers.

It has been suggested40 that the Abbey National Case might have been decided differently under the ACL given s26(2), which provides:

The suggestion is that the fees amounted to consideration that was contingent on the occurrence of a particular event, viz. the occurrence of an unauthorised overdraft.

Unfair

Finally, attention may be directed to the ultimate question. When will a term be “unfair”?

Section 24(1) provides:

A term of a consumer contract is unfair if:

(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

These are cumulative conditions, each of which must be satisfied in order to found the conclusion that the term is unfair.

Whether these conditions are satisfied must be assessed in light of the gloss added by sections 24(2) and (3):

(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(c) presented clearly; and

(d) readily available to any party affected by the term.

First condition: significant imbalance

This condition directs attention to the effect of the relevant term of the contract.

The term itself must be causative of an imbalance in the parties’ rights and obligations arising under the contract, and that imbalance must be “significant”.

It has been suggested that:

(a) the issue should be whether there are burdens placed on the consumer that are not balanced by concessions elsewhere in the transaction;

(b) in many cases, this will involve consideration of the extent to which the term detracts from the rights held by the consumer at common law.41

A similar provision in the Victorian regime was considered in Jetstar Airways Pty Ltd v Free [2008] VSC 539.

Cavanough J held (at [127]) that the condition required consideration of the rights and obligations of the parties under the contract as a whole. The correctness of this proposition in the present context is reinforced by s24(2)(b).

Cavanough J added (at [128]):

Then (at [129]) Cavanough J dealt with one such term — a special term as to price — saying it:

Second condition: reasonably necessary for the protection of legitimate interests

This condition may be seen as a qualification of the first condition, in that a term that causes a significant imbalance (in the sense of the first condition) may nevertheless be justified by a party demonstrating that the term is reasonably necessary for the protection of its legitimate interests.

The burden in this regard is placed squarely on the party advantaged by the term. Section 24(4) provides that a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

The task in this regard has been described as follows:

Third condition: would cause detriment

There are two important matters to note here, which suggest that the requirements of this condition may not be demanding.

First, this condition is not limited to detriment that has actually been suffered. Rather, it extends to detriment that would be suffered in the future.

Secondly, the condition does not require the detriment to be substantial, or even material.

Examples of terms that may be unfair

Section 25(1) provides:

Whilst these are proffered only as examples of terms which may be unfair, it would seem that, as Justice Heydon has observed extra-judicially:

… the way in which s25(1) is drafted will tempt complaining parties to mount litigation which appeals to those examples, and is likely to influence courts to operate under a de facto presumption that terms of that kind are unfair.44

Conclusion

The first aspect of the reforms discussed above has done much to clarify the operation of the facilitative provision which now appears in s4 of the ACL.

The second aspect of the reforms discussed above could not be said to have had a clarifying effect. Whether it will have a beneficial effect is a question upon which reasonable minds may differ.

Adam Pomerenke

Footnotes

1. Productivity Commission, Review of Australia’s Consumer Policy Framework, Inquiry Report No 45 (2008), Vol 1, 63-74.
2. The new unconscionable conduct provisions follow the language of the former ss51AA, 51AB and 51AC of the TPA. However, those provisions are likely to be amended in the manner set out in the Competition and Consumer Legislation Amendment Bill 2010 (Cth). This Bill lapsed when the 2010 Federal election was called, but is expected to be re-introduced this year.
3. There are already two new text books which have done so: Corones, The Australian Consumer Law (Lawbook Co, 2011) and Bruce, Consumer Protection Law in Australia (LexisNexis, 2011). 
4. Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth), [3.11].
5. See, e.g., Ting v Blanche (1993) 118 ALR 543 at 552 (Hill J); Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 (Goldberg J); Australian Competition and Consumer Commission v IMB Group Pty Ltd (1999) ATPR 41-704 at 43,022-43,023 (Drummond J); Australian Competition and Consumer Commission v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 at [133] (Kenny J); Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] (Stone J). 
6. However, that is not how Allsop J, sitting as a member of the Full Court of the Federal Court, interpreted Keane JA’s reasons in McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230 at [189] ff.
7. Her Honour had explicitly rejected the approach adopted by Emmett J in Universal Sports less than six months earlier in Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82].
8. Such that the Court would be justified in departing from the decision of another intermediate appellate court in terms of the principle stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].
9. See, e.g., Readymix Holdings International Pte Ltd v Wieland Process Equipment Pty Ltd (No 2) [2008] FCA 1480 at [99] (Flick J). An application for special leave to appeal from the decision in McGrath was refused, albeit in terms which were not apt to quell the controversy as to the approach to be taken under the section: see [2008] HCATrans 235.
10. For example, in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [275]-[279], Collier J preferred the view that the section imposed a legal or persuasive burden, whereas in Australian Securities and Investments Commission (ASIC) v Cycclone Magnetic Engines Inc (2009) 224 FLR 50 at [187]-[188], Martin J followed the approach taken by Allsop J in McGrath.
11. ACN 070 037 599 Pty Ltd v Larvik Pty Ltd [2008] QCA 416 at [109] fn 89, where McMeekin J, with whom McMurdo P and White AJA agreed, referred expressly to the decisions in Universal Sports, McGrath and Downey v Carlson Hotels.
12. Compare Martin J’s interpretation of Keane JA’s reasons in Australian Securities and Investments Commission (ASIC) v Cycclone Magnetic Engines Inc (2009) 224 FLR 50 at [194].
13. This view was followed by Martin J in Australian Securities and Investments Commission (ASIC) v Cycclone Magnetic Engines Inc (2009) 224 FLR 50 at [189]-[195].
14. See, e.g., Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [14] (FCAFC); Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 240 (Ormiston J).
15. See, e.g., ACN 070 037 599 Pty Ltd v Larvik Pty Ltd [2008] QCA 416 at [108] (McMeekin J, with whom McMurdo P and White AJA agreed).
16. See, e.g., Australian Competition and Consumer Commission v Universal Sports Challenge Pty Ltd [2002] FCA 1276 at [43]-[45] (Emmett J); Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [8]-[11] (FCAFC); Hatt v Magro (2007) 34 WAR 256 at [42] (Steytler P, with whom Wheeler JA agreed)) and [65]- [67] (Pullin JA).
17. The intent in this regard was confirmed in the Explanatory Memorandum: see Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth), [2.22].
18. Heydon, Trade Practices Law; Competition and Consumer Law (Looseleaf), Vol 3, [160.370]; Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth), [2.22].
19. Adopting Allsop J’s formulation in McGrath.
20. Again, the intent in this regard was confirmed in the Explanatory Memorandum: see Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth), [2.22].
21. Again, the intent in this regard was confirmed in the Explanatory Memorandum: see Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth), [2.22].
22. See, e.g., Hurley v McDonald’s Australia Ltd (2000) ATPR 41-741 at [31] (FCAFC); Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926 at [94] (RD Nicholson J).
23. See, e.g., Paterson, “The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts” (2009) 33 MULR 934 at 937-939.
24. See, e.g., Zumbo, “Dealing with Unfair Terms in Consumer Contracts: Is Australia Falling Behind?” (2005) 13 TPLJ 70; Zumbo, “Promoting Fairer Consumer Contracts: Lessons from the United Kingdom and Victoria” (2007) 15 TPLJ 84. 
25. Zumbo, “The Case for Enhancing the Federal Unfair Contract Terms Framework” (2009) 17 TPLJ 276.
26. See, e.g., Gray, “Unfair Contracts and the Consumer Law Bill” (2009) 9(2) QUTLJJ 155 at 174-175.
27. Zumbo, “The Case for Enhancing the Federal Unfair Contract Terms Framework” (2009) 17 TPLJ 276 
28. Heydon, Trade Practices Law; Competition and Consumer Law (Looseleaf), Vol 3, [180.10]. 
29. In addition, the UK regime is examined in Chitty on Contracts (30th ed, 2008), Vol I, Chapter 15 and Peel, Treitel: The Law of Contract (12th ed, 2007) at [7-092] ff.
30. Carter, “The Commercial Side of Australian Consumer Protection Law” (2010) 26 JCL 221 at 228. 
31. As yet no such matters have been prescribed.
32. ACCC, A Guide to the Unfair Contract Terms Law, July 2010, at 4.
33. Office of Fair Trading v Abbey National plc [2010] 1 AC 696 at [31] (Lord Walker).
34. Paterson, “The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts” (2009) 33 MULR 934 at 942.
35. Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [12], per Lord Bingham, quoting from Treitel: The Law of Contract (10th ed, 1999) at 248.
36. Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [12], per Lord Bingham, quoting from Chitty on Contracts (28th ed, 1999), Vol 1, [15-025].
37. Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [12] (Lord Bingham).
38. Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [34] (Lord Steyn).
39. Director General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [12] (Lord Bingham) and [31], [32], [34] (Lord Steyn); Office of Fair Trading v Abbey National plc [2010] 1 AC 696 at [43] (Lord Walker).
40. Paterson, “The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts” (2009) 33 MULR 934 at 941 fn 51.
41. Paterson, “The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts” (2009) 33 MULR 934 at 944.
42. Paterson, “The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts” (2009) 33 MULR 934 at 944-945.
43. As yet no such terms have been prescribed.
44. Heydon, Trade Practices Law; Competition and Consumer Law (Looseleaf), Vol 3, [180.250].