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CHRIS FIELD[*]
One of the most important developments in Australian consumer protection policy occurred recently in Victoria with the passage of amendments to the Victorian Fair Trading Act 1999 that prohibit the use of unfair terms in consumer contracts.
While contracts are often thought of as a result of a bargaining process -an offer is made and an acceptance of that offer is received with a formal 'meeting of the minds' between the contracting parties -the reality for most consumer contracts is quite different!. On-line contracting (often referred to as 'click wrap' agreements) provides a perfect example. These contracts generally involve consumers being presented with a long, dense and often complex list of terms and conditions that they must scroll through before being presented with an option to click 'I agree' or 'I disagree'. If the consumer chooses 'I agree', the contract is formed. If the consumer chooses 'I disagree' what generally follows is a reminder to click 'I Agree' followed by removal from the website by further attempts to disagree. Problems are not limited to on-line contracting and are a feature of a range of markets, including financial services, telecommunications and rental cars, to name a few.[1] Such 'take it or leave it' contracts are characterised by a lack of bargaining. Although in theory such contracts are not necessarily a problem, so long as these contracts are fair; the reality is that, far too regularly, these contracts are anything but fair. Terms that allow businesses to vary contracts unilaterally, without notice, negotiation or consent are commonplace, including terms allowing businesses to cancel contracts, limit performance of contracts, change contract terms, change the goods or services supplied under contracts, penalise consumers but not businesses for breaching or cancelling contracts and limit a consumer's right to sue.
There has been growing concern about the prevalence of consumer contracts, particularly standard-form contracts[2] containing terms that represent a serious abuse of the much greater market power that businesses possess compared to individual consumers.
There is wide agreement that fair; effective, competitive markets deliver the best price, quality and access to goods and services for the majority of Australians. Does competition, however; deliver fair consumer contracts? Put another way isn't it reasonable to argue that where a consumer has a choice of supplier; and is aware of the unfair nature of contract terms, the consumer can choose a supplier that contracts fairly? Unfortunately, in most major consumer markets, competitors rarely compete on their terms and conditions, preferring to use similarly onerous contracts, regularly in a form that is standard across a market In reality. it is unlikely that the vast majority of consumers will ever be sovereign rational agents of equal power and information to ensure effective markets for unfair contracts. Indeed, markets can be competing fiercely on price and product attributes, but at the same time produce extravagantly unfair marketing and contracting behaviour-the mobile phone market immediately comes to mind. A few terms typical of this market that could be considered unfair include:
• A term allowing the supplier to charge an excessive cancellation fee for early termination of the contract by the consumer. Regularly this amount will be higher than the contract price remaining to be paid -that is, it imposes a penalty on the consumer (the operation of penalty terms is discussed at greater length below);
• A term allowing the supplier to vary the rates or charges imposed (for example call rates or SMS rates) unilaterally and at any time, and regularly without any notice to the consumer;
• A term that incorporates other terms and conditions into the contract, when the consumer never sees the document containing these terms and conditions -it is specified to be available 'on request'. Regularly. the incorporated terms and conditions will contain the bulk of the obligations imposed on the consumer;
• A term allowing the supplier to add 'credit management' fees, in other words debt collection fees, to the amount owed ifthe consumer does not pay their bill by the due date (in addition to late payment fees); and
• A term authorising the supplier to complete the application form for the mobile phone service on behalf of the purchaser and stating that the purchaser agrees to be bound by this completed form.[3]
Terms that are arguably unfair to the consumer are not limited to the telecommunications market For example, the Australian Competition and Consumer Commission has noted that it considers illegal the following 'click wrap' contract terms found on Australian websites (on the basis that they are in breach of the implied warranties contained in the Trode Practices Act 1974,[4] but equally these terms could be said to be unfair):
• all goods sold in the clearance sale have no warranty whatsoever
• retums for refund will only be accepted within seven days of you receiving the goods
• refunds for some items will be at the current market price -not the original purchase price
• the actual products are often not the same as the images.[5]
Financial services contracts are another common cause for concern when it comes to unfair terms.
The Australian Consumers' Association, in its submission to the Committee of Inquiry into the Competition Provisions of the Trade Practices Act 1974 (commonly referred to as the Dawson Inquiry), refers to the following loan contract clause as an example of an unfair unilateral change clause:
From time to time we may:
a) change the amount of or basis for calculating any fee or charge, change the interest or fee charging cycle, or both, and, except during any fixed interest rate period of the
Loan, change any interest rate marg1n, any link to a reference interest rate and the bas1s for calculating interest;
b) impose and debit: to the Loan Account any new fee or charge;
c) change the frequency of repayments;
d) change the Loan Account number ...
e) change the way we describe any reference 1nterest rate; and
f) change any other terms and conditions.[6]
The Association observes that the:
... right, under f),to change unilaterally any term in the contract goes well beyond the well-established and accepted practice of lenders offering products that allow alteration of interest rates and/or fees and charges over the course of the loan term.[7]
A joint-government working group, the Standing Committee of Officials of Consumer Affairs Unfair Contract Terms Working Party (SCOCA Working Party), is currently 'investigating the need for nationally consistent regulation of unfair terms in contracts and the best model to achieve this if a need should be demonstrated'.[8] The SCOCA Working Party released a discussion paper in January 2004, Unfair Contract Terms -A Discussion Paper, examining the issue of unfair contract terms. The SCOCA Working Party observes of standard form contracts:
It has become 1ncreas1ngly clear that many such standard form contracts contain clauses which are unfair or unnecessarily one-sided to the detriment of the purchaser. One reason that these have become so prevalent is that there is little, if any. competition in this regard. Purchasers do not usually 'shop around' on the basis of the best contract terms: it would be too impractical an exercise for the vast majority of people to decide, for example, which hire-car company to use based on the best contract terms. Purchasers predominantly focus on price and the quality or characteristics of the product. They may not appreciate that a 'good' price has been achieved through the imposition of onerous terms. As a result, terms may well be standard across an industry and even if the purchaser went elsewhere, they would be faced with a similar situation.[9]
When it comes to the terms and conditions of contracts, lack of consumer bargaining power; an absence of competitive market pressures and significant imbalances of information between businesses and consumers about the nature and effect of terms and conditions are all taken advantage of by business to create highly one-sided, 'take it or leave it' contracts. Such contracts can, and regularly do, lead to enormous consumer detriment[10] (and this leaves aside the contracting behaviour of monopoly providers where there are, by definition, an absence of competitive pressures).
The recent history of Australian consumer protection policy has been characterised by light-handed regulation, where governments, on the whole, have been disinclined to intervene in the operation of the market, preferring, mostly sensibly, to promote consumer welfare through robustly competing market participants.[11] What incentives exist for businesses, however; to avoid unfair contracting behaviour detrimental to consumers, in the absence of appropriate competitive pressures? What happens if business does not bear risk for their failure to be fair contracting partners, striking a balance between price and terms? Where the free operation of the market fails consumers through an absence of competitive pressure and there is demonstrable, serious and unfair consumer detriment flowing from that failure, market intervention is warranted to protect consumers.
Courts have, over a number of years, developed doctrines that result in preventing one party enforcing a contract, or part of the contract, against the other party. Perhaps the most notable of these, for the purpose of this discussion, is the concept of unconscionability. The scope of the unconscionability doctrine has been set out by the High Court of Australia in Commercial Bank of Australia Ltd v Amadio: [13]
The jurisdiction is long established as extending generally to circumstances in wh1ch (i) a party to a transaction was under a special disability in dealing with the other party w1th the consequence that there was an absence of any reasonable degree of equality betWeen them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fai1r. just and reasonable.[14] [citations omitted]
Thus, where a business exploits its knowledge of a disadvantage (or special disability) of a consumer and the result is unfair; courts may intervene to provide a remedy. A special disability has been found to exist in circumstances including, for example, drunkenness,[15] emotional infatuation,[16] age and limited written English skills.[17] The doctrine of unconscionability deals with procedural fairness -matters leading to the formation of the contract, as opposed to the substantive fairness of the contract.
Prohibitions on unconscionability, that expand on the doctrine developed by the courts, including examining substantive fairness, in addition to procedural fairness,[18] are now included in the Trade Practices Act as well as state and territory fair trading legislation. A further legislative consumer protection regime that deals with unjust contracts exists in New South Wales. [19]
What is clear is that unconscionability is a useful remedy for individual consumers (able to afford to access justice) but it has been largely ineffective as a catalyst for improving contracting practices generally; the sheer number of unfair contracts in the marketplace is evidence of that view. The SCOCA Working Party Discussion Paper puts the matter this way: '(t)here is currently no effective mechanism to effect systemic changes of practice in the marketplace (except possibly in Victoria ...)'.[20] What has been needed is a more effective regulatory tool to promote fair consumer contracts.
The Victorian parliament recently passed the Fair Trading (Amendment) Act 2003 which amends the Victorian Fair Trading Act to include, among other things, a legislative regime aimed squarely at unfair terms in consumer contracts. The Victorian legislation is largely based on the Unfair Contract Terms Act 1977 (UK) and, more specifically, on the Unfair Terms in Consumer Contracts Regulations 1999 (UK) (the UK Regulations).These UK regulations are, in tum, modelled on the relevant European Council Directive.[21]
An unfair term is defined by the legislation as:
A term 1n a consumer contract is to be regarded as unfair if, contrary to the requirements of good faith and in all the circumstances, it causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer.[22]
The definition is in two parts that operate together: the first part requires consideration of the requirements of 'good faith' and the surrounding circumstances, and the second part requires that the term causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. The definition is similar to the definition of an unfair contract term in the UK Regulations, in which an unfair term is described as a term that has not been individually negotiated and 'contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer'.[23]
The meaning of good faith is not defined in the legislation. The idea of contractual good faith is explored in the decision of the New South Wales Court of Appeal in Renard Constructions (ME) Pty Ltd v Minister for Public Works ('Renard).[24] In that case, Priestly and Handley JJA found that a termination clause could only be exercised subject to a requirement of reasonableness. Priestly JA held:
The contract can in my opinion only be effective as a workable business document under which the promises
of each party to the other may be fulfilled, if the subclause is read in the way I have indicated, that is, as subject to requirements of reasonableness.[25]
Further; Priestly JA commented that:
... people ... from all strands of the community have grown used to the courts apply1ng standards of fairness to contract which are wholly consistent with the ex1stence in all contracts of a duty upon part1es of good faith and fair dealing in its performance.[26]
Renard and a number of other cases suggest that a duty of good faith requires the parties to act reasonably.[27] There is, however; considerable debate about good faith as a concept in Australian law and the meaning of good faith could be considered far from settled.[28]
In any case, it is likely that the meaning of good faith in the Victorian legislation goes beyond that which Australian courts have so far implied. As noted earlier; the definition of an unfair contract term in the new s 32W is modelled closely on the equivalent provision in the UK Regulations.
According to literature published by the UK Office of Fair Trading which gives guidance on the interpretation of the good faith requirement in UK law, good faith:
... is based upon the idea that businesses should deal fairly and equitably with consumers, respecting their legrtimate interests. It means more than not being deceitful in the way a term is used. It sets a high standard, and it requires consideration of whether a term should properly have been included in the contract at all, not just of the way it is presented or exploited.[29]
Further, in the first case brought by the UK Office of Fair Trading under the UK Regulations, Director General of Fair Trading v F1rst National Bank plc, the House of Lords defined good faith, in the context of a previous form of the UK Regulations, as follows:
The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumers necessity, indigence, lack of experience, unfam1liarrty with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed 1n ...the regulations.[30]
Consumer Affairs Victoria, in its recently published guidelines on the new unfair contract terms provisions, adopts the following definition of good faith:
A principle of fair and open dealing; that is 'playing fair, especially when one party is in a position of dominance over a consumer who is vulnerable relat1ve to that dominance or power.[31]
Good faith is intended as a broad term. For example, it could ask that a supplier take positive steps to make sure that a contract is fair such as bringing a term in question to the consumer's attention, rather than hiding it away in the 'small print'.[32]
A broad interpretation of good faith, as indicated by these guidelines, appears very much in keeping with the spirit and intention of the legislative regime.
The second requirement of the legislative prohibition is that an unfair term causes a significant imbalance in the parties' rights and obligations arising under the contract to the detriment of the consumer. The new s 32X gives further guidance for the assessment of unfair terms, providing:
Without limiting section 32W, in determining whether a term of a consumer contract is unfair. a court or the Tribunal may take 1nto account, among other matters, whether the term was individually negotiated, whether the term is a prescribed unfair term and whether the term has the object or effect of-
(a) permitting the supplier but not the consumer to avoid or lim1t performance of the contract;
(b) permitting the supplier but not the consumer to terminate the contract;
(c) penalising the consumer but not the supplier for a breach or termination of the contract;
(d) permitting the suppl1er but not the consumer to vary the terms of the contract;
(e) permitting the supplier but not the consumer to renew or not renew the contract;
(f) permitting the supplier to determine the price without the right of the consumer to terminate the contract;
(g) permitting the supplier unilaterally to vary the characteristics of the goods or services to be supplied under the contract;
(h) permitting the supplier unilaterally to determine whether the contract had been breached
or to interpret its meaning;
(i) limiting the suppliers vicarious liability for its agents;
(j) permitting the supplier to assign the contract to the consumer's detriment without the consumers consent;
(k) limiting the consumer's right to sue the supplier;
(l) limiting the evidence the consumer can lead in proceedings on the contract;
(m) 1m posing the evidential burden on the consumer in proceedings on the contract.
By way of comparison, the Schedule to the UK Regulations,[33] and bulletins published by the UK Office of Fair Trading,[34] also provide examples of terms held to be unfair. These include such terms as:
• terms excluding or limiting liability
• non-returnable consumer prepayments
• penalties
• unfair cancellation terms
• binding the consumer to hidden terms
• variation clauses
• giving the supplier a right of final decision
• denying liability for statements made by agents and employees
• unbalanced assignment clauses
• hindering or preventing the consumer going to court
• allowing excessive burdens or requirements to be imposed on the consumer
• requiring the consumer to bear inappropriate risks
• requiring the consumer to make disadvantageous declarations
• excluding non-contractual rights
• unreasonable obligations and restrictions.
A recent review of the UK regime by the UK and Scottish Law Reform Commissions commented that the concept of imbalance may also be problematic, stating:
It tends to suggest that a harsh clause may be justified if it can be shown that the contract is a reasonable balance in terms of value for money. This is often not the po1nt ... frequently the harsh terms are 'balanced' by a low price, but the consumer did not appreciate the harshness of the terms or did not want such a deal, and therefore it is unfair.[35]
The legis1ation renders unfair contract terms void, provides that businesses cannot use standard form contracts that contain an unfair term and allows for regulations to prescribe specific unfair terms contained in contracts to be void.
Unfair contract terms -national approach
A significant number of industries that contract with consumers operate on a national basis and, while the Victorian initiative to make consumer contracts fairer is welcome, clearly what is needed is a national approach to this issue.
As noted earlier, the SCOCA Working Party is currently 'investigating the need for nationally consistent regulation of unfair terms in contracts and the best model to achieve this if a need should be demonstrated'.[36] The SCOCA Working party Discussion Paper recommends that the following five options should be considered by state and territory governments around Australia:
Option 1 - No additional regulation
This would mean keeping the status quo of reliance on section 51AB Trade Practices Act 1974 (unconscionable conduct) (and its mirror provisions in the State and Territory fair trading statues) and sect1on 70 Uniform Consumer Credit Code. In New South Wales, subject to its review, the CRA would continue to apply and in Victoria the new provisions 1n relation to unfair contract terms in its Fair Trading Act I 999 will be taking effect.
Option 2-Self regulation
This would allow self regulation by business and industry through mechanisms such as guidelines or voluntary codes.
Option 3 -United Kingdom model and variants
This model and its variants prohibit the use of unfair
terms in consumer contracts and provide a mechanism for determining whether a term is unfair. There is provision for not only individuals to take action but also for fair trading agencies to deal with unfair terms systemically. The Victorian variation also allows for a 'black list' of terms which will be regarded as unfair and for prosecution for use ·of such terms.
Option 4 -Contracts Review Act 1980 (NSW)
The NSW Contracts Review Act I 980 (CRA) provides a mechanism for individual consumers to take action with respect to unjust contracts and for the State fair trading agency to take systemic action.
Option 5 - Composite model
This model considers using those provisions from the CRA which address issues of concern prior to and at the t1me
of making the contract and the aspects from the UK model and variants which consider the actual unfa1rness of the
term itself. It would allow for both an individual and systemic response to unfair contract terms.[37]
Given the extent of market failure in the area of consumer contracts, neither options 1 , 2 or 4 (given the significant limitations of the Contracts Review Act 1980 (NSW) model), appear to be desirable options to deal effectively with unfair consumer contracts. Regardless of whether option 3 or 5 was chosen, new national uniform legislation should encompass so-called 'penalties clauses' and apply to credit contracts.
National unfair contract terms legislation should specifically make penalty terms unlawful. Terms providing for excessive early termination or breach fees (typical in telecommunications and utilities contracts) are a common example of such penalty terms.The common law forbids contract terms that provide for fees that are not a genuine pre-estimate of the loss that a business suffers as a result of a default/breach by the consumer, but really amount to penalties.[38] Such penalties, extravagant in amount compared to the actual cost of dealing with the breach of contract, are designed to intimidate consumers into contractual performance. A study by the Consumer Federation of America, for example, found that cheque dishonour fees in the United States comprised up to a 90% profit margin.[39]
Despite the common law position, penalty fees have grown enormously. both in breadth of application and fee amount, particularly in the banking sector, and now provide revenue streams of billions of dollars for Australian businesses. This is despite the fact that such fees are regularly criticised as unfair to consumers, particularly low-income consumers. It is important to note here that the UK Office of Fair Trading has indicated that the use of penalty terms is unfair.[40]
Unfair terms in credit contracts are not regulated by the new Victorian legislation.[41] This anomaly, though understandable when credit contracts are otherwise regulated by national, uniform legislation, cannot be justified in any national approach to this issue. New national legislation should encompass credit contracts-there is simply no reason why consumers of credit contracts should be afforded any less protection than consumers in non-credit markets.
In its submission to the Dawson Inquiry. the Australian Consumers' Association called for national regulators, particularly the Australian Competition and Consumer Commission, the Australian Securities and Investments Commission and the Australian Communications Authority to undertake an audit of the marketplace and provide a report on the extent of unfair contract terms, including those terms that should be regarded as unfair.[42]
Following this audit process, regulators, particularly those mentioned previously. should begin collaborative work with industry and consumer groups to prescribe black and white lists of contract terms specific to particular industries. There is an important role, beyond national unfair contract terms legislation itself, for such industry-specific regulation. As part of a response to the notoriously unfair advertising and contracting practices prevalent in the telecommunications market, the Consumer Law Centre Victoria, Australian Consumers' Association, Communications Law Centre and Consumers 'Telecommunications Network created the Black and White List of Consumer Contract Terms in Telecommunications Contracts.[43] This list provides a series of specific terms that should form part of a consumer friendly contract, as well as terms that should not Such lists have the potential to create new fair standard form contracts that have the virtue of creating contracting certainty for businesses and important cost efficiencies but are also fair to consumers.
Unfortunately fair highly competitive markets do not necessarily deliver fair consumer contracts. This market failure, and the avoidable consumer detriment that flows from it, gives rise to a clear case for governments to intervene, to protect consumers, both by creating new remedies for those who have suffered detriment due to an unfair contractual term, as well as providing new tools for regulators to change the contracting behaviour of major consumer markets. This has occurred in Victoria. What is now needed, however. due to the national operation of most major consumer markets, is uniform, national unfair contract terms regulation. A number of approaches to this regulation are possible, but one that builds on the Victorian approach and takes into account overseas experience of similar legislation seems most desirable. In particular, unfair contract terms regulation should prohibit penalty terms and should also apply to credit contracts. Critically. national unfair contract terms regulation has the potential to create what markets too often have failed to provide Australian consumers -fair contracts that strike a reasonable balance between the rights and responsibilities of businesses and consumers.
This article is based on a paper presented to a one-day seminar hosted by Consumer Affairs Victoria on 7 November 2003 titled Unfair Contracts -The bottom fine for business. My thanks to Anoushka Bondar and Eliza Collier of the Consumer Law Centre Victoria for their assistance in preparing this article.
[*] CHRIS FIELD is Executive Director, Consumer Law Centre Victoria and Chair, Australian Consumers' Association. jane@clcv.net.au ©2004 Chris Field
[1] The widespread usage of unfair contract terms is discussed in the submission of the Australian Consumers'Assoc1at1on to the Committee of inquiry into the Competition Provisions of the Trade Practices Act 1974 (commonly referred to as the Dawson lnquiry) at <http://tpareviewtreasury.gov.au/ submissions.asp> at 13 February 2004.
[2] See, for example, Nome Ross, 'Crackdown to Spread Nationwide: New Deal on Mobiles, Credit Cards', Herald Sun (Melbourne), 5 February 2004, 28. The Standing Committee of Officials of Consumer Affa1rs Unfa1r Contract Terms Working Party has observed in the recent Unfair Contract Terms -A Discussion Paper (January 2004) 17, that '(i)t has become increasingly clear that many such standard form contracts contain clauses which are unfair or unnecessarily one-sided to the detriment of the purchaser' The Discussion Paper is available in pdf format at <http://www.fairtrading.qld.govau/oft/oftweb.nsf/ AllDocs/RWPCD456F7C38F523684A256E
2400 14EF7C10penDocument&L I =Publications> at 13 February 2004.
[3] These examples were compiled by Nicole Rich, lawyer, Consumer Law Centre Victoria and are based on actual mobile phone contracts of clients of the Consumer Law Centre V1ctona's legal pract1ce. Further examples and discussion of unfair terms in telecommun1cat1ons contracts can be found in Commumcations Law Centre, Report on Fair Terms in Telecommunications Consumer Contracts 2003, May 2003.
[4] More precisely. ss 53(g), 69, 70 and 71
[5] Australian Competition and Consumer Commission, (February 2004) ACCC Consumer Express 1
[6] '[Clause 10.4 of the] Commonwealth Bank's current Usual Terms and Conditions for Consumer Lending [PF I] is typical ... [of] unlimited or very broad unilateral change clauses in ... standard form home loan, personal loan and credit card facilities', above n 1 ,Annexure II, I. A series of arguably unfair contract terms is set out in Annexure II of the Association's submission
[7] Australian Consumers' Association, above n 1,Annexure II, I
[8] SCOCA Working Party, above n 2, 8.The Discussion Paper notes, 'Queensland and Victoria jointly chair the Unfair Contract Terms Working Party (the Working Party) which was set up in late 2002 by the Standing Committee of Officials of Consumer Affairs (5COCA) at the direction of the Ministerial Council on Consumer Affairs (MCCA) All state and territory fair trading agencies are represented on the Working Party together with nominees from Commonwealth Treasury, the
Australian Competition and Consumer Commission and the Australian Securities and Investments Commission'
[9] SCOCA Working Party, above n 2, 17
[10] Based on the experiences of clients of the Consumer Law Centre Victoria’s legal practice
[11] See, for example, Chris Field, 'Codes of Conduct -The new face of consumer protect1on' ( 1999) 24 Alternative Law Journal I09, 157, Chris Field. 'Pay day lending an exploitative market practice’ (2002) 27 Alternative Law Journal 1, 36, Simon Smith, 'Consumer Affairs -The Cinderella of Government Policy Making' (2003) 28 Alternative Law Journal 182
[12] This article focuses on the Australian context. The SCOCA Working Party D1scuss1on Paper examines the state of unfair contract terms regulation in NZ, the US, Canada and Thailand See above, n 2, 35-8.
[13] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR447
[14] Ibid,474, per Deane J.
[15] Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362.
[16] Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621
[17] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447.
[18] See above n 2, 21-23 for a discussion of this point
[19] Contracts Review Act 1980 (NSW).
[20] SCOCA Working Party. above n 2, 8.
[21] Council Directive 93/13/EEC
[22] Fair Trading (Amendment) Act 2003 s 32W.The SCOCA Working Party Discussion Paper adopts the following definition of unfair contract terms.' .. unfair contract terms are those terms in a contract which are to the disadvantage of one party but which are not reasonably necessary for the protection of the legitimate interests of the other party'. See above, n 2, 8.
[23] The Unfair Terms in Consumer Contracts Regulations 1999 (UK), reg 5( 1)
[24] Renard Construction (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 ('Renard')
[25] Ibid 258.
[26] Ibid 268
[27] See also, Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187 (unreported, New South Wales Supreme Court of Appeal, 21 June 200 I), Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] ATPR41-703
[28] J W Carter and E Peden, 'Good Faith in Australian Contract Law', (2003) 19 Journal of Contract Law 1, 1 See also Peter Heffey, Jeannie Paterson and Andrew Robertson, Principals of Contract Law (2002) 269-70;J M Paterson, 'Duty of good faith Does It Have a Place in Contract Law?' (2000) 74(6) LIJ 48.
[29] Office of Fair Trading, Unfair Contract Terms Guidance for consumer adv1sers on the Unfair Terms in Consumer Contracts Regulations 1999 (August 2000) 2
[30] Director General of Fair Trading v First National Bank plc [2001] UKHL 52; [2002] 1 AC 481 at [ 17]
[31] Consumer Affairs Victoria, 'Preventing Unfair Terms in Consumer Contracts', Guidelines on Unfair Terms in Consumer Contracts Amendments to the Fair Trading Act 1999’ (2003) 4.
[32] Ibid 4
[33] Schedule 3 Indicative and Illustrative List of Terms Which May be Regarded as Unfair.
[34] UK Office of Fair Trading, above n 23, Appendix 2 'Terms that may be considered unfair'
[35] Scottish Law Commission, 'Unfair Terms in Contracts A Joint Consultation Paper', Consultation Paper No 166, Paper No 119 (2000).
[36] SCOCA Working Party above n 2, 8.
[37] Ibid 9-1 0.
[38] See, eg, O'Dea v Allstates Leasing System (WA) Pty Ltd ( [1983] HCA 3; 1983) 152 CLR 359: AMEV UDC Finance Ltd v Austin [1986] HCA 63; (1986) 162 CLR 170: Esanda Finance Corporation Ltd v Plessnig ( [1989] HCA 7; 1989) 166 CLR 131
[39] Janice C Shields, Bounced Checks Billion Dollar Profits II, Consumer Federation of America ( 1998)
[40] SCOCA Working Party, above n 23
[41] Pursuant to the new ss 32V of the F01r Trad1ng Act, Part 28 does not apply to contractual terms contamed 1n a contract to which the Consumer Credit (Victoria) Act I 9 95 applies.
[42] Australian Consumers' Association, above n 1.
[43] A copy of the Black and White List of Consumer Contract Terms in Telecommunications Contracts can be obtained free of charge from the Consumer Law Centre Victoria.
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