•

set out a brief outline of the relevant facts;

•

outline the relevant statutory provisions and discuss the scheme of the legislation;

•

deal with the meaning of the term "consumer contracts" and make findings about whether AAPT has entered into contracts of this type;

•

deal with the meaning of the expression "unfair term";

•

make findings about whether at least some of the terms in AAPT contracts are unfair terms or unclear terms; and

•

discuss the nature of the relief available to the tribunal in proceedings pursuant to Part 2B of the FTA and consider the contention advanced by AAPT that the issues complained of by the Director are moot or hypothetical.

In discussing some of these issues it will be necessary to go into the facts in more detail, but I will do so when dealing with a particular issue.

4 Two of the telephony services provided by AAPT are a mobile phone service and a prepaid mobile phone service. AAPT does not actually provide the infrastructure for the delivery of the service, but on-sells services provided by companies known as Telstra, Optus and Vodaphone. There are over 16 million mobile phone services in use in Australia. AAPT has a market share of about 2%: which would mean that the number of its subscribers runs well into six figures.

5 In order to inform its customers and potential customers, AAPT publishes on its website detailed terms and conditions in relation to its services. In November 2004 an officer of the Director downloaded the terms and conditions applicable to AAPT's mobile and prepaid mobile services; and on 23 December 2004 she was told by an AAPT sales assistant that the terms and conditions were available on the AAPT website.

6 The AAPT website also makes reference to residential and business solutions which it makes available to customers. Mobile services are advertised as one of the services available under the heading of residential services. AAPT also provides the option of bundling a home phone with a mobile phone on the one account. AAPT uses the comedienne "Effie" to promote its products. For example, one brochure, published in August 2004, has a picture of Effie on the phone with the caption "If you're smart and you like to chat, you should switch to AAPT smartchat".

7 Although there is a paucity of specific evidence concerning mobile phone contracts entered into by AAPT (including prepaid mobile contracts), I infer from the evidence before me that AAPT entered into both mobile and prepaid mobile phone contracts pursuant to the terms and conditions which were published on its website in November 2004. Further, having regard to the total number of mobile phone services provided by AAPT, the nature of mobile phone use in the community generally[1] and the content of AAPT advertising, I also infer that AAPT entered into mobile and prepaid mobile contracts pursuant to the terms and conditions contained on its website in November 2004 with persons who intended to use the service for domestic or personal use.

8 The Director brought the present proceeding on 13 December 2004. AAPT had in fact commenced to review the terms and conditions of its mobile phone contracts several months earlier. As part of the review process several meetings were held with the Director and his staff in the period December 2004 to March 2005. Further, AAPT prepared a series of new terms and conditions, which came into force on 1 May 2005. The new terms and conditions were no doubt intended to address the concerns held by the Director. All contracts entered into since 1 May 2005 - in relation to both the consumer and small business customers of AAPT - have been pursuant to the new terms and conditions. Further, the new terms and conditions wholly replace the terms and conditions previously in place between AAPT and customers (which I take to be both consumer and small business customers) where the contract had been entered into before 1 May 2005. These customers have been advised that if they can identify a situation or event that occurred prior to May 2005 in which they would have received a more favourable outcome had the new terms and conditions applied to that situation or event, then, as long as it is practicable, the new terms and conditions will apply to that situation or event. According to AAPT, these changes mean that any declarations or injunctions in relation to the terms and conditions in force prior to 1 May 2005 will have no practical effect and would be purely hypothetical.

•

to promote and encourage fair trading practices and a competitive and fair market;

•

to protect consumers;

•

to regulate trade practices;

•

to provide for unfair terms in consumer contracts to be void; and

•

other related purposes.

10 Part 2B of the FTA gives effect to these purposes, particularly the purposes of protecting consumers and providing for unfair terms in consumer contracts to be void. The key provision is s 32W, which provides:

A term in 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.

11 The expression "consumer contract" is critical to the operation of section 32W. Section 3 of the Act defines this term as follows:

"consumer contract" means an agreement, whether or not in writing and whether of specific or general use, to supply goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, for the purposes of the ordinary personal, domestic or household use or consumption of those goods or services;

12 Section 32X is designed to assist in determining whether a term of a consumer contract is unfair. This provides:

Without limiting section 32W, in determining whether a term of a consumer contract is unfair, a court or the Tribunal may take into 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 limit 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 supplier 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 supplier's vicarious liability for its agents;

(j) permitting the supplier to assign the contract to the consumer's detriment without the consumer's 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) imposing the evidential burden on the consumer in proceedings on the contract.

13 The expression "term" is not itself defined. However, from its context in Part 2B of the FTA it seems to require some element of integrity, that is an element that can stand alone or be identified as a separate part of a contract. This does not mean that an element must be severable to be a "term".

14 Section 32Y of the FTA provides that an unfair term in a consumer contract is void. It also provides that the contract will continue to bind the parties if it is capable of existing without the unfair term.[2]

15 Section 32ZA provides:

32ZA. Injunctions to prevent continued use of unfair terms

(1) The Director may apply to the Tribunal for an injunction against any person who, in the Director's opinion, is using, or recommending the use of -

(b) a prescribed unfair term in standard form contracts.

(2) The Tribunal, if it is satisfied that, in all the circumstances, it is just and convenient to do so, may by order grant an injunction under this section on such terms as it considers appropriate.

(3) Section 123(2) to (7) of the Victorian Civil and Administrative Tribunal Act 1998 applies as if an injunction under this section were an injunction under that section.

(4) An injunction may relate not only to the use of a particular term in a consumer contract or standard form contract, but to any similar term or to a term having like effect, used or recommended for use by any person.

16 Section 32ZC deals more generally with declarations by the tribunal. This provides:

(1) The Director may apply to the Tribunal for an order declaring that -

(a) a contract is a consumer contract or standard form contract;

(b) a term of a consumer contract is an unfair term;

(c) a term of a standard form contract is a prescribed unfair term.

(2) The Tribunal may make a declaration in relation to a matter under sub-section (1) or any related matter.

(3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member.

17 Section 32ZD makes reference to advisory opinions by the tribunal. Although this case does not involve a request for an advisory opinion, as the provision may be relevant in relation to declarations, I also set this out.

(1) The Director may, in writing, refer to the Tribunal for an advisory opinion any matter, including but not limited to -

(a) whether a contract is a consumer contract or standard form contract;

(b) whether a term of a consumer contract is an unfair term;

(c) whether a term of a standard form contract is a prescribed unfair term.

(2) The Tribunal may provide an advisory opinion in relation to a matter under sub-section (1) or any related matter.

18 Section 163 of the Act has also been relied on. This provides, relevantly:

(1) In this section "consumer document" means -

(b) a statement, notice or other document required by this Act to comply with this section.

(2) A consumer document does not include a contract to which the Consumer Credit (Victoria) Act 1995 applies;

(b) to the extent that it is printed or typed, must use a minimum 10 point font; and

(4) If the Tribunal is satisfied, on application by the Director, that any provision of a consumer contract does not comply with the requirements of this section, the Tribunal may by order prohibit a supplier from using the provision in the same or similar terms in consumer contracts.

19 It is apparent that the definition of "consumer contract" has two limbs, both of which must be satisfied for an agreement to be a consumer contract. AAPT contended that neither limb is satisfied in the present circumstances.

20 The first limb of the definition requires the agreement to be an agreement to supply goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. Clearly enough, this is an objective test. But AAPT contended that the test had not been satisfied because it had not been shown that any mobile phone services supplied by AAPT were ordinarily supplied for personal, domestic or household use or consumption.

21 The second limb of the definition requires the agreement to be an agreement for the purposes of the ordinary personal, domestic or household use or consumption of goods or services. AAPT contended that the Director had not proved that any agreement had been made for such purposes. In this respect AAPT submitted that the section was concerned with the purposes for which the goods or services were supplied: that is, the section focused on the subjective intention of the supplier. It said that there was no evidence that AAPT had such a subjective intention when it provided any particular mobile phone service.

22 I find that the first limb of the definition of "consumer contract" is satisfied. It is notorious that telephone services - especially mobile phone services - are ordinarily acquired and used for personal use. To conclude otherwise would be to ignore everyday experience. There is no reason to conclude that mobile phone services supplied by AAPT are an exception. On the contrary, the advertising used by AAPT seems to be primarily directed at personal consumers; which would indicate that this type of consumer is a significant part of the market served by AAPT.

23 In making this finding it is not necessary to say that mobile phone services supplied by AAPT are mainly acquired and used for personal use (or for personal, domestic or household use),[3] even though I would make this finding. To satisfy the first limb, it is sufficient that the service is recognised as a member of a class or genus that is commonly used for such a purpose (or purposes).

24 Relying on the decision in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation,[4] counsel for AAPT submitted that the concept of "ordinarily used" equals the primary purpose and customary use of the good or service. In my opinion, this decision was made in a different context[5] and is neither binding nor helpful. However, if it be the applicable test, I would conclude that it was satisfied: as the primary and customary use of a mobile phone service is for personal use. It may be true that a mobile phone service is equally adapted to both a personal use and a business use, but this does not demand a different conclusion. The use of mobile phones for personal purposes is pervasive.

25 I also find that the second limb of the definition of "consumer contract" is satisfied. In particular, I find that in or about December 2004 AAPT agreed to supply a mobile phone service (and a prepaid mobile phone service) to a consumer for the purposes of the ordinary personal, domestic or household use or consumption of that service.

26 It is true that there is a paucity of direct evidence about the purpose of the supply of the mobile phone services in issue. But is it possible to draw inferences; and it is proper that I do so, especially in the absence of any contrary evidence.

27 The purpose of the supply of a good or service will be the outcome sought to be achieved by the supply of the good or service.[6] But it is not necessary that there be just one outcome; a good or service will be supplied for a specified purpose if it is substantially supplied for that purpose.

28 Counsel for AAPT submitted that, in applying the second limb, the focus must be on the supplier's subjective intention at the time of the agreement to supply. It was said that the evidence did not establish that any concluded agreement was entered whereby it was AAPT's purpose that a mobile phone service be used for ordinary personal use. I cannot accept this submission for two reasons.

29 First, I would find that in December 2004 AAPT did have the purpose of supplying mobile phone services for ordinary personal use. In this respect, I do not accept that AAPT advertisements - that are clearly directed towards the personal consumer - are irrelevant. Even if the advertisements are only directly relevant to what was promoted by AAPT (rather than what it agreed to supply), I would infer from the advertisements that a substantial purpose of the supply of the service was for personal use.

30 Second, I do not agree that, in applying the second limb, the subjective intention of the supplier is determinative. Rather the definition of "consumer contract" requires the ascertainment of the purposes of the "agreement", not the supplier.[7] This is to be ascertained by reference to the terms of the agreement, which will reflect the intention of all of the parties to the agreement. The terms of the agreement relied upon by the Director support the finding that a substantial purpose of the parties was the supply of a mobile phone service for personal use. The application form seeks personal information about income, residential address, date of birth and home phone number. The types of plans available are given names directed at personal use: for example, "MY CALL 30". And there is nothing in the application form or the agreements which suggest the contrary.

31 In order to ascertain the meaning of "unfair term" the proper place to start is with the words of the statute.[8]

32 It is apparent that a term in a consumer contract is to be regarded as unfair if it causes a significant imbalance in the parties' rights and obligations arising under the contract. It is apparent that the significant imbalance must be to the detriment of the consumer. And it is apparent that in determining whether a term causes a significant imbalance in the parties' rights and obligations one must have regard to all the circumstances. What is less apparent is: what is meant by a "significant" imbalance? And what is the role to be given to the words "contrary to the requirements of good faith"?

33 The word "significant" simply means "important" or "of consequence". It does not mean "substantial". It is not a word of fixed connotation and besides being elastic is somewhat indefinite.[9] However, in its context, it is designed to identify an imbalance, to the detriment of the consumer, which should be regarded as unfair. In this sense the definition is circular. But it is impossible to avoid the notion of fairness in determining whether a term causes a significant imbalance, even though this exercise is designed to ascertain whether a term is unfair.

34 The manner in which the Parliament has referred to the requirements of good faith is curious. The Parliament has not said that a term is to be regarded as unfair if the term is contrary to the requirements of good faith. Rather the manner of expression suggests that if a term causes a significant imbalance in the parties' rights and obligations arising under a consumer contract, to the detriment of the consumer, this would be contrary to the requirements of good faith. Thus the manner of expression suggests that the phrase is either surplusage or simply performs an adjectival role, designed to assist in the assessment of whether a term in a consumer contract causes an imbalance which is "significant". It is unlikely that the Parliament intended the words to be surplusage.[10] Hence it is likely that the Parliament intended that the reference to the requirements of good faith play a role in determining whether the nature, or extent, of an imbalance should be regarded as significant.

35 Insofar as the reference to the requirements of good faith performs a role (whether adjectival or substantive), it will be necessary to identify the content of these requirements. It is likely that it will have both a procedural and a substantive component. However I propose to defer this for the moment to see if the history of the provision, or any relevant authorities, suggest that a different meaning to that indicated by the language used.

The history of Part 2B of the FTA

36 In introducing the Fair Trading (Amendment) Bill[11] into the Legislative Council on 21 May 2003, the Minister for Consumer Affairs stated that the Bill:

prohibits unfair terms in consumer contracts, along the lines of similar United Kingdom legislation but with a further provision enabling the Government to prescribe terms in standard form consumer contracts as unfair, which will enable the Government to step in where consumers sign take-it or leave-it contracts, not necessarily because of misleading, deceptive or unconscionable conduct by the trader, but which nevertheless contained terms that tipped the balance unfairly and disproportionately in favour of the trader.

37 The reference to similar United Kingdom legislation would appear to be a reference to The Unfair Terms in Consumer Contracts Regulations 1999 ("the 1999 UK regulations").[12] These regulations replaced The Unfair Terms in Consumer Contracts Regulations 1994 ("the 1994 UK regulations").[13] Both sets of regulations were made pursuant to the European Communities Act 1972. Clause 5(1) of the 1999 UK regulations provides:

A contractual term which has not been individually negotiated shall be regarded as unfair if, 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.

A schedule to the 1999 UK regulations contains an indicative and non-exhaustive list of terms which may be regarded as unfair. Further, clause 6(1) of the regulations provides, in substance, that:

the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all other terms of the contract or of another contract on which it is dependent.

The similarities between these provisions and section 32W of the FTA are apparent.

38 It is necessary to also refer to the terms of the 1994 UK regulations, because it is only those regulations which have been considered at a high judicial level. Section 4 of the 1999 UK regulations provided:

4(1) In these Regulations, subject to paragraphs (2) and (3) below, "unfair term" means any term which contrary to the requirement of good faith causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.

Schedule 2 to the 1994 UK regulations amplified the requirement of good faith:

In making an assessment of good faith, regard shall be had in particular to -

(a) the strength of the bargaining positions of the parties;

(b) whether the consumer had an inducement to agree to the term;

(c) whether the goods or services were sold or supplied to the special order of the consumer, and

(d) the extent to which the seller or supplier has dealt fairly and equitably with the consumer.

Schedule 3 then provided a long list of terms which may be regarded as unfair.

39 In 1989, in deciding Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd,[14] Bingham LJ made a number of pertinent observations about the concept of "good faith":

In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith. This does not simply mean that they should not deceive each other, a principle which any legal system must recognise; its effect is perhaps most aptly conveyed by such metaphorical colloquialisms as "playing fair", "coming clean" or "putting one's cards face upwards on the table". It is in essence a principle of fair and open dealing.

English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.

He then offered examples as to particular situations where English law had provided a solution to problems of unfairness: such as in relation to unconscionable bargains, the imposition of exemption clauses and penalty provisions in contracts. But in 1994 there was a more direct response to the problem of unfairness with the making of the 1994 UK regulations.

40 In February 2000 the Court of Appeal of England and Wales was required to interpret the 1994 UK regulations in Director General of Fair Trading v First National Bank plc.[15] The judgment of the Court, given by Lord Justice Peter Gibson, concerned a term in a loan agreement that allowed a bank to recover interest on an amount adjudged by the County Court to be owing under the agreement. After posing the question as to whether the relevant term was unfair, Lord Justice Peter Gibson said:

Three elements in the test in the Regulations of unfairness of a contractual term may be noted, viz.

(2) a significant imbalance in the parties' rights and obligations under the contract; and

"Good faith" has a special meaning in the Regulations, having its conceptual roots in civil law systems. The German Standard Contract Terms Act, providing for the avoidance of a term which is unreasonably disadvantageous to a party "contrary to the requirements of good faith" (see Markesinis: The German Law of Obligations Vol. 1 (1997) p.908), appears to have had a significant influence on the Directive (see Chitty on Contracts, 28th ed. (1999) para. 15-034).

After referring to the comments of Bingham L.J. in Interfoto Library Ltd v Stiletto Ltd, Lord Justice Peter Gibson quoted from Professor Beale:[16]

"I suspect that good faith has a double operation. First, it has a procedural aspect. It will require the supplier to consider the consumer's interests. However, a clause which might be unfair if it came as a surprise may be upheld if the business took steps to bring it to the consumer's attention and to explain it. Secondly, it has a substantive content: some clauses may cause such an imbalance that they should always be treated as unfair."

As is aptly said in Anson's Law of Contracts, 27th ed. (1999), p.293, the "good faith" element seeks to promote fair and open dealing, and to prevent unfair surprise and the absence of real choice. A term to which the consumer's attention is not specifically drawn but which may operate in a way which the consumer might reasonably not expect and to his disadvantage may offend the requirement of good faith. Terms must be reasonably transparent and should not operate to defeat the reasonable expectations of the consumer. The consumer in choosing whether to enter into a contract should be put in a position where he can make an informed choice.

The element of significant imbalance would appear to overlap substantially with that of the absence of good faith. A term which gives a significant advantage to the seller or supplier without a countervailing benefit to the consumer (such as a price reduction) might fail to satisfy this part of the test of an unfair term.

Finally the element of detriment to the consumer must be present for the term to be found to be unfair.

The Director relied upon this decision.

41 The decision of the Court of Appeal in the First National Bank case was the subject of an appeal to the House of Lords.[17] The leading judgment in the House of Lords was given by Lord Bingham of Cornhill.[18] He observed that it was plain from the recitals to the directive that one of its objectives was partially to harmonise the law among all member States of the European Union. He thought that the language used in expressing the test was clear and not reasonably capable of different interpretations.[19] Lord Bingham continued:

A term falling within the scope of the regulations is unfair if it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer in a manner or to an extent which is contrary to the requirement of good faith.[20]

He observed that the requirement of significant imbalance is met if a term is so weighted in favour of the supplier as to tilt the parties' rights and obligations under the contract significantly in the supplier's favour. He continued:

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 consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice. Regulation 4(1) lays down a composite test, covering both the making and the substance of the contract, and must be applied bearing clearly in mind the objective which the Regulations are designed to promote.[21]

Lord Bingham went on to hold that the term in dispute could not properly be said to be unfair having regard to the statutory test.

42 It was suggested that Lord Bingham intended to identify three independent requirements for a term to be regarded as unfair: that it be detrimental to the consumer, that it cause a significant imbalance, and that it be contrary to the requirement of good faith. However the first passage I have cited does not support this. Rather I would take Lord Bingham as indicating that the manner or extent of the imbalance must be contrary to the requirement of good faith. To my mind, this suggests that the "good faith" phrase was regarded as adjectival in operation, rather than imposing a separate requirement. The reference to the "requirement of good faith" in the second quoted passage is a reference, not to a separate requirement of an unfair term, but to the content of the concept of good faith.

43 By contrast, Lord Steyn held that the definition of an unfair term had three independent requirements. He thought that the requirement that the term be detrimental to the consumer may not add much; and focused on the other two requirements. He considered that the concept of good faith imposed an objective criterion; and that good faith imported the notion of open and fair dealing. He observed that this requirement was explained in a European Commission publication as "to enforce community standards of decency, fairness and reasonableness in commercial transactions".[22] In relation to the element of significant imbalance, Lord Steyn noted that this directed attention to the substantive unfairness of the contract. He added:

It is however, also right to say that there is a large area of overlap between the concepts of good faith and significant imbalance.

44 The history of the FTA and the decisions of the House of Lords in the First National Bank case confirm my view that the expression "contrary to the requirements of good faith" in sections 32W of the FTA performs an adjectival role and is designed to assist in the assessment of whether a term in a consumer contract causes an imbalance which is "significant". As I have indicated, the definition of an unfair term might be thought to be circular, as it is impossible to avoid the notion of fairness in determining whether a term causes a significant imbalance in the parties' rights and obligations. However, if the balance of the parties' rights and obligations is thought to be contrary to the requirements of good faith this would be indicative of a significant imbalance. There is no separate requirement of "good faith" in consumer contracts; rather "good faith" is a touchstone which might be employed in determining whether a term in a consumer contract is an unfair term.

45 It may be that, in practice, the concept of "good faith" provides limited assistance. If it is a principle of fair and open dealing, it provides direction; but it is not a roadmap to a destination. The same goes for the colloquialisms of "playing fair" and "coming clean". In the Interfoto case Bingham LJ also suggested that good faith was conveyed by the colloquialism of "putting one's cards face upward on the table"; but, frankly, I think this takes the concept too far.

46 In Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL (Receivers and Managers Appointed) (Administrators Appointed)[23] the Victorian Court of Appeal was reluctant to conclude that commercial contracts were of a class that carried an implied term of good faith as a legal incident, although it observed that it may be sometimes appropriate to import such an obligation to protect a vulnerable party from exploitive conduct which subverts the original purpose for which the contract was made.[24] In this context Buchanan JA briefly touched on what might be the content of an implied contractual duty of good faith. This included acting reasonably, not acting capriciously, not seeking to prevent the performance of a contract or withholding its benefits, and not seeking to further an ulterior purpose for that which a contractual right or power is conferred. Frankly these examples of what might be the content of a duty to show good faith are of limited assistance. This is especially so in light of the detailed guidance provided by section 32X of the FTA, where a host of specific matters are set out which are designed to, and do, guide a court or the tribunal in determining whether a term of a consumer contract is unfair.

47 Sir Anthony Mason has said that he thought it probable that the "concept of good faith" embraced no less than three related notions:

1 An obligation on the parties to co-operate in achieving the contractual objects (loyalty to the promise itself);

3 compliance with standards of contract with are reasonable having regard to the interests of the parties.[25]

In a subsequent and influential article "Contract, Good Faith and Equitable Standards in Fair Dealing"[26] Sir Anthony expanded upon these notions. In relation to the third notion - which might be called a requirement of fair dealing - he observed:

... within reason and in conformity with the express provisions of the contract, the exercise of power is not [to be] capricious, arbitrary, unconscionable or unreasonable even to the extent of insisting upon, in an appropriate case, taking account of the interests of the other party.[27]

Although these observations provide some general assistance in understanding the content of "the requirements of good faith" it remains the case that the concept can only play a general adjectival role in determining whether a term in a consumer contract is to be regarded as unfair pursuant to section 32W of the FTA.

48 Finally, I would observe that I would agree with the observation of Professor Beale[28] that the "requirements of good faith" have a procedural aspect and a substantive content. A term in a consumer contract might cause such a significant imbalance in the parties' rights and obligations arising under the contract (to the detriment of the consumer) that the term is unfair even if the term is individually negotiated or brought to the attention of the consumer. On the other hand, there will be other terms in consumer contracts which will not be regarded as unfair if, and only if, individually negotiated; or, if, and only if, brought to the attention of the consumer.

49 The Director has pointed to numerous provisions in the contracts entered into by AAPT, in respect of both the mobile phone service and the prepaid mobile phone service, which he says were unfair terms. Having regard to my ultimate conclusions, it is unnecessary to separately analyse each term said to have been unfair. However it is clear that many of the terms identified by the Director were unfair terms within the meaning of section 32W of the FTA and are void. It is desirable to deal with some of these terms in order to illustrate why they were unfair.

50 Clause 1.3 of the mobile services standard form of agreement ("mobile SFOA") provided:

Variations: We may vary any term of this Agreement at any time in writing. To the extent required by any applicable laws or determinations made by the Australian Communications Authority (ACA), we will notify you of any such variation.

This term is unfair because it permits AAPT, but not the customer, to change the contract unilaterally. The term has the effect of permitting AAPT, but not the consumer, to avoid or limit the performance of the contract: see section 32X(a) of the FTA. AAPT pointed to the fact that it has no mobile phone network of its own, but simply resells services supplied by Telstra, Optus and Vodaphone. Under the terms of AAPT's supplier contracts, terms may be imposed upon AAPT on relatively short notice, which might make it commercially necessary for AAPT to seek changes consequential upon new terms imposed on AAPT. Be this as it may, it provides no justification for a term as broad as clause 1.3, which permits AAPT to vary any term of the agreement, at any time, for any cause.

Suspension: We reserve the right to suspend provision of Services to you, where charges owing to us or any amount owing under this clause remain outstanding after 60 days, unless we have received written notice from you disputing those charges in good faith. If we suspend or terminate the Services for unpaid charges or any other reason, subsequent reconnection may incur a reconnection fee.

I accept the submission made by AAPT that there are two fundamental obligations under the contract, namely:

(1) AAPT provides a mobile telephony service to the customer; and

(2) the customer pays AAPT in consideration for receiving that service.

Hence I do not accept that the first sentence of this term is unfair. However the second sentence of the term goes too far, as it provides that AAPT may charge a reconnection fee for "any other reason": and this could embrace a reason which does not involve any breach by the customer of its obligations under the contract. To this extent, clause 3.10 is an unfair term.

52 Clause 9 of the mobile SFOA provided:

9.1 We may from time to time and without notice or liability to you suspend any of the Services (and at our discretion disconnect the relevant SIM cards from the Network) in any of the following circumstances:

(a) during any technical failure, modification or maintenance of the Network (but in that event we will procure resumption of the Services as soon as reasonably practicable);

(b) if you fail to comply with any of these terms and conditions (including failure to pay charges due) until the breach (if capable of remedy) is remedied;

(c) if you do, or allow to be done, anything which in our reasonable opinion may have the effect of jeopardising the operation of those Services; or

(d) if the amount outstanding under this Agreement at any time (whether or not its payment has fallen due) exceeds the credit limit set by us under clause 3.14.

9.2 Notwithstanding any suspension of the Services under this clause you shall remain liable for all charges due hereunder throughout the period of suspension (including without limitation all monthly access fees, and regardless of whether or not any SIM card has been disconnected from the Network) unless we in our sole discretion determine otherwise.

AAPT told the tribunal that clauses 9.1(a), (b) and (c) simply reflect the terms upon which mobile services are provided to AAPT by Telstra, Optus and Vodaphone. But even if this is so, it cannot justify the term contained in clause 9.2 whereby the customer remains liable for all charges throughout the period in which the service is suspended unless AAPT, in its sole discretion, determines otherwise. Circumstances could arise where service is suspended for a technical failure and the nature of the failure (and suspension of service) is such that AAPT is not required to pay a fee to the ultimate service supplier. Yet, because clause 9.2 gives AAPT a discretion as to whether or not to charge its customer during the period of suspension, that term is clearly unfair. Thus it is unnecessary to reach any conclusion on whether a term would be unfair if it turned on whether or not AAPT was liable to the ultimate supplier during a period of suspension.

10.2 Immediate termination: We may terminate this Agreement immediately by notice to you if:

(c) you change your address or billing contact details without notifying us in accordance with clause 7.4.

10.4 You remain liable for all charges payable under the Agreement in respect of Services up to the time of termination.

These provisions potentially have broad application. A customer may have breached the Agreement in a manner which is inconsequential, yet faces the prospect of having the service terminated. Further, if the customer changes his or her address (which will not necessarily be the address for the receipt of billing information), this will also provide a ground to AAPT to terminate the Agreement. Because these provisions are so broadly drawn, and are one sided in their operation, they are unfair terms within the meaning of the FTA.

54 Clause 1.3 of the prepaid mobile service standard form of agreement ("prepaid mobile SFOA") provided:

1.3 Variations: To the extent permitted by law, AAPT may change a Supplier or its products, or vary our charges from time to time without notice to you. Otherwise, AAPT may vary these terms on 30 days written notice to you.

This term causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. For example, it would enable AAPT to reduce the number of calls that a person could make pursuant to a prepaid mobile phone service which the person had entered into in good faith. This term was an unfair term.

Are express unfair terms made fair by an implication of good faith?

55 In an ironic twist, AAPT argued that none of the express terms of its agreements could be regarded as an unfair term because the agreements were subject to an implied term that the parties would act in good faith. AAPT maintained that there was a contractual concept of good faith in Australia, the effect of which was that AAPT was required to act reasonably in exercising its contractual rights. According to AAPT, this meant that none of the express terms, which might otherwise seem to be unfair terms, could actually operate unfairly.

56 But, as I have previously observed, it is not yet Victorian law, if it ever will be, that consumer contracts are generally subject to an implied term of good faith. I hold that no such term is implied into the contracts in question in this case. The contracts are typical of consumer contracts generally. And there is no evidence that particular consumers are, or were, vulnerable, other than in the sense that they are, or were, consumers.

57 Further, even if a requirement of good faith was implied into the agreements the subject of this proceeding, I would not be satisfied that any of the terms I have identified as having been unfair terms would be rendered fair. An imbalance in parties' rights and obligations may arise under a contract if one of the parties is unaware of a term that might be in its favour. This is because the other party would then be in a position to refer to, or ignore, that term at its discretion. Thus a consumer contract may create a significant imbalance in the parties' rights and obligations, to the detriment of the consumer, even if a comprehensive analysis of the parties' rights and obligations, including implied obligations, might not support this conclusion. This is because an imbalance may arise by reason of an information imbalance. A term which is written in fine print, or in a schedule, or in Latin, might easily be overlooked or misunderstood by the consumer (or, indeed, those administering the contract on behalf of the supplier) such that other terms - which are unfair when standing alone - prevail. This conclusion is more readily reached in the case of an implied term, especially one as vague and indefinite as that of "good faith".[29]

58 Another problem which may arise if the AAPT argument is correct is whether this would involve a breach of section 163 of the FTA, which requires a consumer contract to be clearly expressed. If a consumer contract gives a supplier express powers which are on their face unfair - yet these express powers are negated or mitigated by some implied obligation - it may well be the case that the contract would not be regarded as being "clearly expressed". However it is unnecessary to pursue this as I am not satisfied that any implied obligation of good faith would avoid a significant imbalance being created by the express terms about which I have made findings.

59 The director also pointed to a number of terms in both the mobile phone service and the prepaid mobile phone service which he says were unclear terms, contrary to section 163 of the FTA. These included terms in relation to the calculation of interest, the payment of outstanding charges, the governing law of the contract, and provisions relating to reliance and release. If it was ultimately necessary, I would have been inclined to have held that some of these terms were not clearly expressed. But, as far as I am aware, none of the terms which might be found to be not clearly expressed are terms which have current or ongoing relevance.

Is this a case for declaratory or injunctive relief?

60 AAPT submitted that the circumstances of the present case were such that it was inappropriate for the tribunal to make any declaration as this would have no foreseeable consequence for the parties.

61 The High Court of Australia has pointed out that central to the notion of a "judicial determination" is that a conclusive or final decision will be made, based on a concrete and established or agreed situation, which aims to quell a controversy. And because this is the object of the judicial process courts have traditionally refused to provide answers to hypothetical questions or give advisory opinions.[30] This is a principle of long standing. In Ainsworth v Criminal Justice Commission[31] the High Court said:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which, "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". However it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the court's declaration will produce no foreseeable consequences for the parties".[32]

In stating that relief will not be granted if the declaration would produce no foreseeable consequences for the parties the court relied on its earlier decision in Gardner v Dairy Industry Authority (NSW).[33]

62 The Gardner case was concerned with legislation regulating the system of milk distribution and marketing in New South Wales. This system had been subject to four successive rearrangements during 1976 and 1977. The first three rearrangements were put into effect before the operation of a 1977 Act, which replaced earlier arrangements. All four arrangements were challenged by a milk producer; but the challenges failed. After explaining why the challenges had failed Mason J added:

It remains for me only to say that had I been of a different opinion in relation to the first three rearrangements I would not have been disposed to grant declaratory relief to the appellants. The rearrangements were no longer in operation when the appellants commenced their proceedings. They had been superseded by the fourth rearrangement which had been set up under the auspices of amending legislation. It was not contended that the appellants, had their argument been correctly founded, were entitled to damages or other consequential relief. All that was suggested was that the Executive might in some undefined way initiate administrative or legislative action which would improve the lot of the appellants and persons in the appellants' position. It is one thing to say that declaratory relief will be granted against the Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the Court's declaration will produce no foreseeable consequences for the parties.[34]

63 Another example where declaratory relief has been refused, on the basis that it is hypothetical, is the decision of Byrne J in Bayston v Scotch College.[35] In that case certain declarations were sought concerning the validity of the constitution of the School Council of Scotch College. However when the matter was before the court the term of appointment had expired and Byrne J stated that the matter was hypothetical as they required the court to address issues "which are no longer of any consequence".

64 The Director submitted that the present case could be distinguished from the principles laid down in Ainsworth and Gardner because the present application was, in its nature, an application for the protection of the public interest. The Director relied upon a number of cases decided in the context of the Commonwealth Trade Practices Act 1974 and, in particular, in the context of section 80 of that Act.

65 The Director relied upon the decision of the High Court in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited.[36] In that case the court held that section 80 of the Trade Practices Act was valid insofar as it purported to confer standing on a person to bring a proceeding even if that person was not injured or affected by a breach of the provision. Gleeson CJ and McHugh J observed that an application for injunctive relief under section 80 of the Trade Practices Act is, in its nature, one for the protection of the public interest, adding:

Any public protection of the applicant's own business or other interests is incidental or collateral. What is sought to be established by the determination of a court is a violation by the respondent of a statutory norm of conduct, and the existence of a duty or liability. The Court is not invited "to make a declaration of the law divorced from any attempt to administer that law". Such a subject matter is justiciable in character. Parliament, by conferring standing upon any person to invoke the jurisdiction of the Court has, at the one time, created the potential for a justiciable controversy and conferred jurisdiction to determine the controversy. This is a common feature of legislation.[37]

66 The Director also relied upon the decision of the Full Court of the Federal Court of Australia in ICI Australia Operations Pty Ltd v Trade Practices Commission.[38] Before referring to judgments in that case it is necessary to point out that sub-sections (4) and (5) of section 80 of the Trade Practices Act specifically provide that the Court may grant an injunction whether or not it appears that the person intends to engage again, or to continue to engage, in conduct of a kind. In this context, Lockhart J observed:

Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different.[39]

After referring to specific provisions of the Trade Practices Act, Lockhart J added:

This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under section 80. That is the effect of sub-sections (4) and (5). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions.[40]

In the same case French J observed that there is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. He observed that deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court.[41]

67 The Director also pointed to a number of decisions where the Federal Court had granted relief to the Australian Competition and Consumer Commission even though undertakings had been given that the conduct in question would not be repeated.[42] However it should not be thought that relief is automatic in such cases, as there are plenty of examples where an injunction has been refused where the offending conduct has ended and a compliance program had been undertaken.[43]

68 In my opinion, an application by the Director pursuant to section 32ZC of the FTA is an application of a public interest character. This follows, not only because the Parliament has given the power to make such an application to the Director (a public official), but also from the public policy character of the FTA[44] and the nature of the application itself (being to maintain proper standards and fairness in consumer contracts). The same applies in relation to an application for an injunction to prevent the continued use of unfair terms (section 32ZA) and an application that a provision of a consumer contract is not clearly expressed (section 163). The absence of any equivalent to sub-sections (4) and (5) of section 80 of the Trade Practices Act does not require a different conclusion, at least in relation to declarations.[45]

69 However the fact that present applications are brought in the public interest does not mean that the traditional equitable doctrines are irrelevant. This is underscored by the use of the words "if it is just and convenient to do so" in the Victorian Civil and Administrative Tribunal Act 1998 and the use of similar words in section 32ZA of the FTA; as these are traditional words that are used when invoking equitable principles.[46] In a nutshell, for declaratory or injunctive relief to be appropriate, it ought have consequences. A traditional consequence is that a declaration or injunction might force the cessation of particular conduct. If the offending conduct has already ceased, a declaration might facilitate a claim for damages in relation to that conduct[47] or an injunction might deter an offender from repeating the conduct by attaching to the repetition the range of sanctions available for contempt.

70 As I have found, on 1 May 2005 AAPT adopted new terms and conditions for its contracts in relation to mobile phone services. In itself, this would not render the Director's applications moot or hypothetical. This is so even though all existing consumers had their terms and conditions updated on 1 May 2005: in such circumstances a declaration might still be relevant to an issue which arose prior to 1 May 2005. However AAPT has also included in the updated terms and conditions, which came into force on 1 May 2005, a provision that gives consumers the benefit of the new terms and conditions retrospectively. Further, there is not the slightest hint that AAPT plans to revert to the terms and conditions which applied before 1 May 2005. Hence I am not satisfied that there remains any consequence of making a declaration or granting an injunction.

71 This analysis can be tested in the following way. Suppose that the tribunal was to declare that mobile phone contracts entered into by AAPT were consumer contracts which contained unfair terms. The effect of such a declaration would be to identify and officially proclaim terms as unfair and, consequentially, void. But, in the case of each term identified and declared as being unfair, that term is no longer part of mobile phone contracts entered into by AAPT; and, importantly, AAPT has undertaken that if a customer can identify a situation or event that occurred prior to May 2005 in which they would have received a more favourable outcome had the new terms and conditions applied to that situation or event, then, as long as it is practicable, the new terms and conditions will apply to that situation or event. In other words, AAPT has already brought about substantially the same consequence as would flow from the making of a declaration.

72 Counsel for the Director advanced other arguments in support of the tribunal making declarations or granting injunctions. It was said that such an outcome would "clarify the law" and would be of public benefit to regulators, service providers and the public. But those objectives are achieved by the reasons for my decision (and any reasons that may be subsequently given by an appeal court); it is not further, or better, achieved by the making of declarations or the granting of injunctions.

73 Another argument advanced by the Director was that the making of a declaration or the grant of an injunction would deter AAPT and like companies from including unfair terms in consumer contracts. In the case of AAPT there is no evidence that it needs to be deterred. On the contrary, it has "rolled over" - and, importantly, done so with a retrospective operation. Insofar as other companies are concerned, there is no need for the tribunal to make declarations or to grant injunctions in order for a signal to be sent that Part 2B of the FTA is an important and powerful tool that may be used to ensure that consumer contracts do not contain unfair terms.

74 It is also relevant that section 32ZD of the FTA enables the Director to refer a matter to the tribunal for an advisory opinion. This provision seems to be an acknowledgement of the limitation on the tribunal's power to make a declaration; and means that there is no need to over-reach in defining the ambit of the declaration power. Further section 32ZD is broader than section 32ZC and is not limited to the matters set out in paragraphs (a)-(c) of 32ZC(1).

75 It follows that this is not an appropriate case for the tribunal to exercise its powers to make the declarations sought or to grant injunctions.

[1] Everyday observation shows that mobile phones are very frequently used for personal and domestic purposes. Whether taking this observation into account is an example of judicial notice, or the exercise of the power pursuant to s 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998, does not matter.

[2] Section 32Y also refers to a prescribed unfair term. However this proceeding does not concern prescribed unfair terms. I was told that no terms have yet been prescribed as unfair terms.

[3] See Hygienic Lily Ltd v Deputy Commissioner of Taxation (NSW) (1987) 71 ALR 441, at 444.

[4] (1987) 87 ATC 5110; (1987) 19 ATR 647.

[5] The Full Court was concerned with a composite test, not a test with two limbs (as is the case under the FTA); and the test was being applied in the context of a sales tax dispute. The interpretation of a composite test is apt to produce a different meaning.

[6] News Limited v South Sydney District Rugby League Football Club Limited [2003] HCA 45, (2003) 215 CLR 563 at 573[18] per Gleeson CJ.

[7] The definition of "consumer contract" in the FTA is to be contrasted with the definition of "services". In Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 Batt JA observed that the latter definition requires one to consider the question, at least principally, from the point of view of the supplier. But, unlike the definition of "consumer contract", the definition of "services" referred to rights, etc, that are, or are to be, "provided, granted or conferred".

[8] See Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5, at [70][2002] HCA 5; , (2002) 186 ALR 289 at [70], per Kirby J.

[9] In Merri Creek Quarry Pty Ltd v Foletta [1951] HCA 12; (1951) 82 CLR 347, at 353, Dixon J made the same comment about the word "works". It is common for a word used in a statute to have a grammatical or semantic meaning that does not readily reveal the legal meaning. See Aharon Barak, Purposive Interpretation in Law, Princeton University Press, 2005 and F A R Bennion, Statutory Interpretation, 3rd Edition, 1997.

[10] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71].

[11] This Bill contained Part 2B of the FTA.

[12] Statutory Instrument 1999 No 2083.

[13] Statutory Instrument 1994 No 3159.

[15] [2000] EWCA Civ 27, [2000] QB 672.

[16] Legislative Control of Fairness: The Directive on Unfair Terms in Consumer Contracts, in Beatson and Friedmann: Good Faith and Fault in Contract Law (1995), at 245.

[17] Director General of Fair Trading v First National Bank plc [2001] UKHL 52; [2002] 1 AC 481.

[18] With the exception of Lord Steyn, the other Lords agreed with Lord Bingham on the construction of the "unfair term" provision.

[19] Counsel for the Director took particular exception to this statement.

[20] [2001] UKHL 52; [2002] 1 AC 481, at 499 at paragraph [17].

[21] [2001] UKHL 52; [2002] 1 AC 481, at 499 at paragraph [17].

[22] [2001] UKHL 52; [2002] 1 AC 481, at 499 at paragraph [36].

[23] [2005] VSCA 228.

[24] The Supreme Court of New South Wales and Finn J of the Federal Court of Australia have been more adventurous (or robust): see Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234, Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 146 ALR 1 and Alcatel Australia Limited v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349. See also Right Honourable Peter Blanchard, Good Faith, Commercial Morality and the Courts, a paper delivered at the 22nd Annual Banking and Financial Service Law and Practice Conference, Cairns, August 2005.

[25] Sir Anthony Mason, 1993 Cambridge lecture, quoted in Alcatel Australia Limited v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349 at 367.

[26] (2000) 116 LQR 66.

[27] (2000) 116 LQR 66 at 77.

[28] Quoted by Lord Justice Peter Gibson in the First National Bank case and set out above.

[29] Section 32V(b) of the FTA may also be relevant in this regard, but I express no view upon it as this was not argued.

[30] Bass v Permanent Trustee Company Limited [1999] HCA 9, (1999) 198 CLR 334, at 355 and 356, [45] and [47].

[31] [1992] HCA 10; (1992) 175 CLR 564.

[32] [1992] HCA 10; (1992) 175 CLR 564, at 582. Original footnotes omitted.

[33] (1978) 52 ALJR 180 at 188 per Mason J, at 189 per Aickin J.

[34] (1978) 52 ALJR 180 at 188.

[35] [2002] VSC 516.

[36] [2000] HCA 11, (2000) 200 CLR 591.

[37] [2000] HCA 11 [at 17].

[38] [1992] FCA 474; (1992) 38 FCR 248.

[39] [1992] FCA 474; (1992) 38 FCR 248 at 256.

[40] [1992] FCA 474; (1992) 38 FCR 248 at 256-7.

[41] [1992] FCA 474; (1992) 38 FCR 248, at 268.

[42] ACCC v The IMB Group Pty Ltd (in liquidation) [1999] FCA 313; (1999) ATPR 41-688; and ACCC v Goldy Motors Pty Ltd [2000] FCA 1885; (2001) ATPR 41-801.

[43] See, for example, ACCC v Signature Security Group Pty Ltd [2003] FCA 3, (2003) ATPR 41-908; ACCC v Danoz Direct Pty Ltd [2003] FCA 881; ACCC v CG Berbatis Holdings Pty Ltd [2000] FCA 1893, (2001) ATPR 41-802; TPC v Gold Coast Property Sales Pty Ltd (1994) 49 FCR 442, 126 ALR 139, (1994) ATPR 41-311 and ACCC v Health Partners Inc [1997] FCA 1469; (1997) 151 ALR 662, (1998) ATPR 41-604. Gray J of the Federal Court of Australia has taken a stronger view, to the effect that relief should be refused where the offending conduct has ended and a compliance programme has been undertaken: see ACCC v Francis [2004] FCA 487, (2004) ATPR (Digest) 46-250, see ACCC v Cadbury Schweppes Pty Ltd [2004] FCA 516, (2004) ATPR 42-001.

[44] Commonwealth Bank of Australia v White [1999] VSC 262; [1999] 2 VR 681, at 704 [89]; Commonwealth Bank of Australia v White [No 4] [2001] VSC 511 at [40]; Society of Lloyds v White [2004] VSCA 101 at [19]; Cousins v SJS Imports Pty Ltd [2004] VSC 521.

[45] The situation in relation to injunctions under the FTA may well be different, as section 32ZA of the FTA seems to confine an application by the Director for an injunction to circumstances where a person is "using, or recommending the use of" an unfair term in consumer contracts. However the tribunal has a broader power to grant an injunction under section 123 of the Victorian Civil and Administrative Tribunal Act 1998. The availability and breadth of that power is confirmed by the decision of the Court of Appeal in Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 at [24] per Batt JA. There is nothing in the recent decision of the Court of Appeal in Herald & Weekly Times Pty Ltd v State of Victoria [2006] VSCA 146 which would require a different conclusion. In that case the court observed that section 123 does not enlarge the tribunal's jurisdiction, but operates in aid of whatever jurisdiction the tribunal already has. Unfortunately the Court's comment at [27] that section 123 confers a power on the tribunal to grant injunctions "only in matters in which it has original jurisdiction" is apt to mislead, as the tribunal clearly has power to grant an injunction pursuant to section 123 in relation to the exercise of its "review" jurisdiction. The better view is that the Court of Appeal decision really means that the tribunal can only utilise section 123 in circumstances where it already has jurisdiction to deal with the matter the subject of an injunction.

[46] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at 240 [88] and 248 [105] per Gummow and Hayne JJ; Herald & Weekly Times Pty Ltd v State of Victoria [2006] VSCA 146 at [27].

[47] For example, a declaration made under section 80 of the Trade Practices Act will facilitate a subsequent action for damages by reason of section 83 of that Act.