Victorian Numbered Acts

OWNER DRIVERS AND FORESTRY CONTRACTORS ACT 2005 (NO 49 OF 2005) - SECT 44

    (1)     The Tribunal may do any one or more of the following in relation to a dispute—

        (a)     refer the dispute to a mediator appointed by the Tribunal;

        (b)     order the payment of a sum of money—

              (i)     found to be owing by one party to another party;

              (ii)     by way of damages (including exemplary damages and damages in the nature of interest);

              (iii)     by way of restitution;

        (c)     order the refund of any money paid under a regulated contract or under a void contract;

        (d)     make an order in the nature of an order for specific performance of a regulated contract;

        (e)     declare that a debt is, or is not, owing;

        (f)     order a party to do or refrain from doing something;

        (g)     make any other order it considers fair, including declaring void any unjust term of a regulated contract, inserting a term into a regulated contract or otherwise varying a regulated contract to avoid injustice.

    (2)     In determining whether a term of a regulated contract is unjust, the Tribunal may have regard to—

        (a)     the intelligibility of the contract generally, and of the term in particular;

        (b)     the extent to which the term, and its legal and practical effect, were accurately explained to the relevant party before the term was agreed to and the extent to which the relevant party understood the term and its effect;

        (c)     the relative bargaining power of the parties to the contract;

        (d)     the consequences to the parties to the contract if the term is complied with or not complied with and the relative hardship of those consequences to each party;

        (e)     whether or not it was reasonably practicable for the relevant party to reject, or negotiate for a change to, the term before it was agreed to;
s. 44

        (f)     the relationship of the term to the other terms of the contract;

        (g)     whether the relevant party obtained independent legal or other expert advice before agreeing to the term;

        (h)     whether unfair pressure, undue influence or unfair tactics were used to obtain the relevant party's consent to the contract or the term;

              (i)     whether at the time the term was agreed to the relevant party knew, or could probably have found out by asking, that the term would cause any other relevant party hardship;

        (j)     the conduct of the parties to the contract after the term was agreed to;

        (k)     whether the term is usually found in regulated contracts of that kind;

        (l)     the justification for the term;

        (m)     whether the term is unconscionable, harsh or oppressive;

        (n)     whether the term is inconsistent with any part of a relevant code of practice, whether or not that part of the code imposes duties or obligations on a person or prohibits a person from engaging in certain conduct;

        (o)     any other factor the Tribunal thinks is relevant.

    (3)     Despite anything to the contrary in this section, in determining whether a term of a regulated contract is unjust, the Tribunal must not have regard to any injustice arising from circumstances that were not reasonably foreseeable when the term was agreed to.

    (4)     In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.