Unjust Contracts - HSC Legal Studies - Consumers

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY PROTECTION

This can cause a bit of confusion.
The first question you could ask is

WHY is the contract unjust?
Is it just the contract itself (e.g. the terms are unjust)?
EXAMINE THE NATURE,
FUNCTION AND
REGULATION OF
CONTRACTS
UNJUST CONTRACTS
- COMMON LAW

But why would someone sign an unjust contract?
Maybe because they were taken advantage of…
… which is called ‘unconscionable conduct’…
… which isn’t the contract itself, but is about the sales tactics used…
… in which case that’s a sales/marketing issue too…

… which is covered by a DIFFERENT PART OF THE SYLLABUS!

Why is this even an issue?
UNJUST CONTRACTS
- COMMON LAW

It used to be a lot clearer just which issues were contract law and
which were more to do with sales/marketing (it was when the
syllabus was released in 2009).
But the ACL was passed in 2010 and commenced (at a federal
level) at the start of 2011. So there are some blurred lines here.

EXAMINE THE NATURE,
FUNCTION AND
REGULATION OF
CONTRACTS
UNJUST CONTRACTS
- COMMON LAW

The ACL has 3 GENERAL bans, which can be applied to contracts.
1. A general ban on misleading and deceptive conduct in trade
or commerce (which means in contracts as well);
2. A general ban on unconscionable conduct in trade or
commerce and specific bans on unconscionable conduct in
consumer and some business transactions; and
3. A provision that makes unfair contract terms in consumer
contracts void.
We’ve already seen an example of the blurred lines in the HP case
(2013). It was a contract issue (they had illegal terms in their
agreements) BUT when the ACCC decided to take HP to court, they
used the ‘misleading and deceptive conduct’ provision/section to
get HP (it was apparently the easier way to nail HP to the wall).

UNJUST CONTRACTS
- COMMON LAW

So, for argument’s sake, we need to just pick a
category for the different unfair contract and
advertising/marketing/selling issues
(because, in the end, you’ll be writing an essay, not being asked
“Which category does this particular subheading go under?”).
UNJUST CONTRACTS

REGULATION OF
MARKETING AND
ADVERTISING

- COMMON LAW

EXAMINE THE NATURE,
FUNCTION AND
REGULATION OF
CONTRACTS
UNJUST CONTRACTS
- COMMON LAW

-

Unfair terms
Contracts with minors
Duress/Coercion and
Undue Influence
Unconscionable
conduct (including
‘unsolicited’ consumer
contracts, e.g. door-todoor sales and
telemarketing)

- NON-STATUTORY
CONTROLS ON
ADVERTISING
-

-

-

Misleading or
deceptive conduct
Misleading or
deceptive
claims/representation
s
Displaying prices
(‘Component Pricing’
and ‘Dual Pricing’)
Social media and
online reviews

UNJUST CONTRACTS
- COMMON LAW

UNJUST CONTRACTS
- COMMON LAW

EXAMINE THE NATURE,
FUNCTION AND
REGULATION OF
CONTRACTS
UNJUST CONTRACTS
- COMMON LAW

-

Unfair terms
Duress/Coercion and
Undue Influence
Unconscionable
conduct (including
‘unsolicited’ consumer
contracts, e.g. door-todoor sales and
telemarketing)

Most of these have a
mix between common
law and statutory
protection.
Statutory protections
are far more common
(and useful) now that
we have the ACL.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
Section 23 of the ACL bans unfair contract terms.
It’s a bit strange at first to see ‘unfair terms’ being banned in contracts,
given that we know that stupid contracts are still contracts (remember –
if you’ve signed it, it’s your fault for not reading it).
But we’re looking at a very particular type of contract – the ‘standard
form contract’, which has a very specific meaning under the ACL
(they’re the types of contracts you usually have with large businesses,
where there’s no real negotiation, it’s already been made and you just
sign or don’t sign).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
But what does ‘unfair’ mean?
A contract term is ‘unfair’ if:
1. It causes a ‘significant imbalance’ between the rights and obligations
of the business and the consumer; AND
2. It is NOT ‘reasonably necessary’ to protect the business; AND
3. It would cause the consumer ‘detriment’ (financial or non-financial) if
it were enforced.
ACL – Section 24(1)
There is also a question of whether or not the terms of a contract are
‘transparent’ (ACL s. 24(2-3)) (like, is it written in plain English?).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms

But even though there IS a definition of ‘unfair’ in the ACL, it STILL
seems like a pretty big thing – aren’t there TONS of ‘unfair’ contract
terms in standard form contracts???
Yep.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
So the ACCC did a massive review of the major industries where
standard form contracts get consumers into trouble, including the:
-

Telecommunications;
Fitness;
Airline; and
Vehicle rental industries.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
The review was called Unfair Contract Terms: Industry review
outcomes (2013). During this time, the ACCC didn’t really go after
businesses, they just checked businesses for compliance. It was like a
cease-fire, where businesses could have their standard form
agreements checked for compliance by the ACCC without fear of
penalty. As a result, some businesses changed their contract terms (e.g.
in the airline industry, 79% of the ‘problematic’ terms were changed).
This review was great because:
1. It gave businesses a good chance to do the right thing (comply);
2. It’s given you (Legal Studies students) a good summary of what
types of terms WILL be considered as ‘unfair’ by the ACCC. This
allows businesses to know (and avoid) these types of terms:

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
1. Terms that allow the business to change contract terms without
consent.
2. Terms that unfairly restrict the customer's right to cancel the
contract (e.g. they have minimum contract periods and exit fees)
3. Terms that allow the business to terminate the contract (even if it
says that the consumer is allowed a refund)
4. Terms that limit a consumer's rights under the ‘consumer
guarantees’ (remember the HP case (2013)?)
So, once they did this review (focusing on the current level of
compliance) the ACCC decided to move on to punishing businesses for
non-compliance…

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
ACCC v ByteCard (2013)
This was the FIRST case where the ACCC took on a business just using the unfair contract terms
sections in the ACL (which was a big deal because the law had been in place for over 2 years by
this point!).
ByteCard (an ISP) had a standard form contract for its customers. The contract included terms
that:
- Allowed it to change their prices at any time without letting the customer choose to end the
contract or renegotiate (so they would be forced to pay the increased amount);
- Made sure that ByteCard was not responsible for any losses to the customer, even if it was
caused by WILFUL NEGLIGENCE OR MISCONDUCT by ByteCard!!!
- Allowed ByteCard to instantly end the contract whenever they wanted, but the customer
would have to give written notice, do this before a certain date PLUS pay all outstanding
accounts to end the contract from their side.
So did these fit the criteria of ‘unfair’ contract terms?

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
ACCC v ByteCard (2013)
Yep.
Under Sections 23-24 of the ACL, ByteCard’s contract:
1. Caused a ‘significant imbalance’ between the rights and obligations of the business and the
consumer; AND
2. Were NOT ‘reasonably necessary’ to protect the business; AND
3. Would cause the consumer ‘detriment’ (financial or non-financial) if it were enforced.
The ACCC had warned telecommunications businesses not to have terms that:

1.
2.
3.

Allow the business to change contract terms without consent.
Unfairly restrict the customer's right to cancel the contract (e.g. they have minimum
contract periods and exit fees)
Allow the business to terminate the contract (without consumers having the same right)

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms


UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
Kucharski v Air Pacific (2011)
This was a NSW case in the CTTT (now NCAT).
An airline ticket had the words “NON ENDNON REF” on it.
There WAS documentation that did say that the ticket was nonrefundable, but this was STILL found to be unfair because it was unclear
on the ticket just what “NON ENDNON REF” meant.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unfair terms
Malam v Graysonline & Rumbles (2012)
Another NSW case (CTTT), where it was found that certain terms were
not transparent (so they were found to be unfair) because:
- Some of the terms were inconsistent with one another
One basically said “You can’t return goods” and another said “You can’t return goods if you
had the chance to examine them”

- The structure of the agreement was confusing; and
- The terms were part of a 13-page online agreement for something
fairly simple.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

BE CAREFUL!!!
The trap that a lot of students fall into is just recounting/retelling the entire set of facts from a
case.
They do this because they seem to remember the facts of cases rather than doing the
evaluation of the law as required.
The Notes from the Marking Centre have said again and again that just recounting stories is not
a way to get the best marks.
So why do teachers tell you the facts?
- So you know what the law means by seeing it applied to a real case;
- So you remember the names of the cases (because you actually know what happened to
them – you can relate them in your memory); and
- So you can use them to answer the question (ATFQ).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

So how can you use these cases in the exam? Relate them to the question!
e.g.

ANSWER (for this part of your essay):
One of the objectives of consumer law as identified by the protections provided by the ACL is to protect
consumers from unfair contract terms.
A contract term is ‘unfair’ if:
1. It causes a ‘significant imbalance’ between the rights and obligations of the business and the consumer;
AND
2. It is NOT ‘reasonably necessary’ to protect the business; AND
3. It would cause the consumer ‘detriment’ (financial or non-financial) if it were enforced.
ACL – Section 24(1)
There is also a question of whether or not the terms of a contract are ‘transparent’ (ACL s. 24(2-3)) (like, is it
written in plain English?).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

e.g.

Success in this area has come at a state level and, more recently, at a federal level.
In the NSW CTTT (the jurisdiction of which now lies with the NCAT), there have been some wins for NSW
consumers in achieving the objective of protecting them from unfair contract terms. In the Kucharski v Air
Pacific (2011) case, the term on an airline ticket (“NON ENDNON REF”) was found to be unfair, despite the
fact that there was supporting documentation. This means that the NSW CTTT was willing to interpret a
term as being unfair even if other documentation was available to explain it to the consumer. In Malam v
Graysonline & Rumbles (2012), it was found that certain terms were not transparent (so they were unfair)
because of internal inconsistency, the confusing structure and unnecessary length of the agreement.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

e.g.

At a federal level, the ACCC has only more recently fulfilled the objective of protecting consumers from
unfair contract terms. This was initially seen as a failure to act, as there were no prosecutions in the first
two years of the ACL’s operation. However, the ACCC had a longer term strategy in mind. It had seen just
how broad the protections provided by sections 23 and 24 of the ACL are, so it conducted a review (Unfair
Contract Terms: Industry review outcomes (2013)) and then proceeded aggressively to prosecute businesses
who were still non-compliant. The first case of its kind was the ACCC v ByteCard (2013) case where ByteCard
was found to have violated the unfair contract terms law (as defined in s. 24(1) of the ACL) with terms that
gave ByteCard rights that were significantly (and unnecessarily) one-sided. The ACCC had flagged this
objective of protecting consumers from unfair contract terms and then followed through with a major
prosecution (with more to follow).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

In Australia, common law generally applies in this area, and makes it clear that a business can’t
enforce a contract with a minor (under 18) (Dillon v Wood (1881)). There are a couple of
exceptions (e.g. if the contract was for ‘necessities’, like food, clothing and accommodation, like
in Nash v Inman (1908)).
In NSW, however, there is a specific statute law (the Minors (Property and Contracts) Act 1970)
which makes contracts binding on young people as long as the contract is FOR THE YOUNG
PERSON’S BENEFIT (and obviously the young person needs to understand that they are
participating in a legal contract – they must have some level of capacity).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Duress/Coercion and Undue Influence
There have been some general protections under common law (in
equity if you want to be very precise*) against bad behaviour that leads
to a contract being signed.
For example, if one party to the contract exploits a relationship of
influence over another in order to get them to sign the contract, it’s
known as ‘undue influence’.
e.g. Johnson v Buttress (1936), where Buttress had completely relied on Johnson while he
was alive, and then his will ended up leaving land to her… The will was ‘set aside’ because
Buttress might have had ‘undue influence’ over his decision to leave land to her.
*Equity

used to apply in cases where the common law would end up causing the decision to be
unjust. These days, though, equity has kind of merged with common law (cases under common
law and equity are heard by the same court). It’s mostly used in contract law and property law.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Another example is duress/coercion.
We remember duress from Crime and it basically has the same meaning
in contract law.

The leading case in this area is Hawker Pacific v Helicopter Charter
(1991) where Hawker Pacific basically said “We know you desperately
need your helicopter back, but we’re not giving it back unless you pay
this extra money”.
This was seen as economic duress and the contract was also set aside.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Under the current statute law (the ACL),
coercion is against s. 50 (and s.168 sets out
the maximum penalty - $1.1 million for a
company!).
Undue influence is covered by the
‘unconsionable conduct’ sections (it says this
in s. 22(1)(d)) and this again can lead to a
fine of $1.1 million (under s. 224)

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Unconscionable conduct
This is something that should have its own subheading (and definitely
will if the syllabus gets re-written and Consumers is still in it).
This could just as easily have gone under the ‘regulation of marketing
and advertising’ subheading because it has to do with sales behaviour.
But you can talk about unconscionable conduct under the subheading
‘unjust contracts’ because of the fact that the behaviour is directly
related to the agreement that ends up getting signed.
So yeah, not your fault, it’s just that the syllabus was written at an
unfortunate point in time.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

un·con·scion·a·ble

adj.

1. Behaviour that is more than simply unfair or
harsh – it must have an element of bad
conscience
2. Beyond the normal levels of hard business
bargaining
3. Clearly unfair and unreasonable
4. Actions you’d look at and think “What a prick!”

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Under common law (equity*):
Blomley v Ryan (1956)
Blomley sold his farm at a ridiculously low price while he was old,
uneducated and basically wrecked from being an alcoholic.
The High Court ‘rescinded’ (cancelled) the contract.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Under common law (equity*):
COMMERCIAL Bank of Australia v Amadio (1983)
A guy took advantage of his elderly parents by lying to them about a
mortgage contract they were signing. The bank didn’t do anything to
explain the contract, which was wrong because they were at least aware
of the possibility that there was a ‘special disadvantage’ there (the fact
that they had to rely on their son’s explanation). So the contract was
rescinded.
Don’t write Commonwealth Bank like a lot of students do! If you get worried about mixing it up,
just write ‘CBA v Amadio’.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Under the PREVIOUS statute law (the Trade Practices Act 1974 (Cth)):
ACCC v Ramon Lal Keshow (2005)
Mr Keshow went to remote NT and WA Aboriginal communities selling
educational materials (which he never provided).
His customers had little or no English skills, nor did they understand the
nature of the direct debits coming from their bank accounts.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Under the PREVIOUS statute law (the Trade Practices Act 1974 (Cth)):
ACCC v Craftmatic (2009)
Craftmatic pressured and lied to senior citizens in their own homes
while trying to sell them beds valued at up to $15,000.

By the way, after getting busted for this back then, they got busted AGAIN in 2013 misleading consumers!

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

Under the CURRENT statute law (the ACL):
The ACL bans unconscionable conduct (sections 20-21 of the ACL). The penalties include fines
and banning the owners from running businesses for a certain amount of time.
Specifically, the ACCC looks for conduct that unconscionable based on the following
considerations:
-

the relative bargaining strength of the parties
whether any conditions were imposed on the weaker party that were not reasonably
necessary to protect the legitimate interests of the stronger party
whether the weaker party could understand the documentation used
the use of undue influence, pressure or unfair tactics by the stronger party

This can apply to the contract itself AND/OR the sales behaviour used to get them to agree.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

CASES under the CURRENT statute law (the ACL):
ACCC v Excite Mobile (2013)
Excite Mobile signed up a whole lot of indigenous people in remote QLD, WA and the NT to its
mobile phone services. The contracts, and the behaviour surrounding them, were found to be
unconscionable.
Excite Mobile told their customers that debt collectors were after them (which they weren’t)
and that if they didn’t pay as required, the debt collectors would take their children’s toys!!!
So, obviously this is wrong, but it was seen as unconscionable because of the vulnerable
position of the consumers. The case was brought to the attention of the ACCC by ICAN, the
Indigenous Consumer Assistance Network.
ACCC v Titan (2013) was similar in that they targeted Indigenous people.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

CASES under the CURRENT statute law (the ACL):
ACCC v Lux Distributors Pty Ltd (2013)
Lux sales reps went to the homes of elderly people (notice a trend?) saying they would do a
“free vacuum cleaner maintenance check”…

Once they were inside, they pressured the ladies to buy the latest Lux model (over $2,000
worth).
Lux were found to have breached s. 21 of the ACL. One of the problems was that by lying to get
into the peoples’ homes it created unequal bargaining power (they couldn’t just walk away).
The good news in this case: This case expanded the meaning of ‘unconscionable’
behaviour/contracts so that the people involved don’t have to be at some SPECIAL disadvantage
to begin with! It was the salespersons’ TACTICS that created the disadvantage!

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

About door-to-door sales…
Door-to-door salespeople and telemarketers are trying to get consumers to enter into what are
called ‘unsolicited’ consumer agreements (meaning that it’s the seller looking for the buyer,
instead of the other way around – the consumer didn’t ask for the business to contact them).
There are special sections in the ACL just for them, sections 69-88 (because they often do awful
things, as we’ve seen). This includes informing the consumer of their rights and not contacting
them during certain hours. It also allows for longer ‘cooling off periods’ (if the consumer
changes his or her mind)
Separately to the ACL (which deals with the contracts side of things), telemarketers are subject
to the Telemarketing Industry Standard 2007 and the Do Not Call Register Act 2006 (enforced
by ACMA, a federal government body).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

ACCC v Australian Power & Gas (APG) (2013)
APG was fined $1.1 million for a combination of misleading and deceptive conduct (which is
covered later) and unconscionable conduct in trying to get vulnerable people to sign up to
energy contracts.
An example? “A woman who could barely read or write (was) instructed to answer ‘yes’ or ‘no’
in a contract confirmation call, as a doorknocker pointed to the words on a bit of paper”
Energy Firm fined $1.1 million for doorknock tactics, Herald Sun (2013)
This has become a real issue in the energy industry, with lots of cases being brought against
them (sometimes very successfully)
e.g. ACCC v AGL (2013), where two AGL companies paid over $1.5 million for breaking the
unsolicited consumer agreements sections of the ACL). This case was also the one that
decided that ‘Do Not Knock’ signs are a request to leave (and have to be complied with
under s. 75(1)(a) of the ACL).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

One last thing about the statutory protections.
We know that the ACL is in the Competition and Consumer Act 2010 (Cth) (it’s included as a
‘Schedule’).
We also know that the ACL is then ALSO incorporated into the Fair Trading Act 1987 (NSW).

But there is another statute in NSW that now kind-of OVERLAPS these laws – the Contracts
Review Act 1980.
This was a very useful law for unjust contracts in NSW (until the ACL), but it’s still in operation
and you should know the name of it. It applies more broadly than the ACL because it covers
business contracts as well as consumer contracts. It includes sections to deal with undue
influence and unconscionable conduct (though it generally uses the word ‘unjust’).
The Contracts Review Act has similar outcomes, though
e.g. Fast Fix Loans Pty Ltd v Samardzic (2011), which was similar to the Amadio case in that
a son took advantage of his parents to get an unjust contract signed.

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

What if it’s not a contract for goods/services? What statute applies?
The National Consumer Credit Protection Act 2009 (Cth) includes a
Schedule (yes, again) called the National Credit Code (NCC).

ASIC is in charge of this area of the law.
This time, though, there’s no duplication – there’s just the single code
(not a federal code, then incorporated into NSW law too…).
There are sections in the NCC that cover unconscionable conduct (e.g. if
the rate of interest charged for a loan is unconscionable, s. 78) and
unjust transactions (including things like undue influence, s. 76).

UNJUST CONTRACTS
- COMMON LAW
- STATUTORY
PROTECTION

We’ll go into more detail about credit issues in the ‘Credit’ section in the
‘Contemporary Issues’ part of this topic.

Unjust Contracts - HSC Legal Studies - Consumers

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