A consumer may seek remedy against a term that is unfair pursuant to s. 23 in either one of two ways. Where a consumer believes that a term is unfair, they may lodge a complaint with a consumer protection agency, or they may take action in the Courts in their own capacity.

Where a consumer lodges a complaint with a consumer protection agency, they will be lodging with either ACCC or ASIC, dependant on the nature of the goods or services supplied in the contract. In the alternative, states and territories will be required to enforce the law at state level within their respective jurisdictions. Where enforcement matters involve both general issues and issues pertaining to financial products and services, provisions have been implemented to enable the delegation of functions between the enforcement agencies to ensure the most appropriate agency has the power to deal with the matter.

In bringing an action to void an unfair term, either the consumer protection agency (i.e., ACCC / ASIC) or the consumer in their own capacity initiates action under s. 250 of the ACL for a declaration that the term is unfair.

Section 250 is as follows:

Where a Court determines that a term is void and a party to the contract continues to rely on the term, there are a number of remedies that may be granted by the Court in the circumstances.

A party may apply for an injunction or an order prohibiting payment or transfer of money pursuant to section pursuant to s. 232 of the ACL or any other order as the Court deems appropriate under s. 237 of the ACL.

In addition to the above, the Court has the power to provide redress to non-party consumers under ss. 239 – 241. Both the ACCC and ASIC have power to seek orders for the benefit of persons that are not party to the proceedings in the following circumstances:

1. the respondent is a party to a consumer contract and advantaged by a term of the contract in relation to which the court has made a declaration that it is an unfair term;
2. the declared term has caused or is likely to cause a class of people to suffer loss or damage; and
3. the class includes people who have not been a party to enforcement action in relation to the declared term.^[1]

The Court has been given the power to award redress to non-parties as, where a term is found to be unfair, it is likely to have implications beyond the case of an individual complainant, as standard form contracts are usually offered to a number of consumers at the same time (particularly in the case of online transactions). The power to award redress to non-parties has the potential to have large financial and reputational consequences against the business using the unfair term.^[2]

Where the Court finds it is appropriate to order redress to non-party consumers, the Court has the power to provide the following remedies for the loss and damage suffered:

• declare all or part of a contract to be void (either before or after the date the order is made);
• vary a contract or arrangement as the court deems appropriate;
• refuse to enforce all or any of the terms of a contract;
• direct the respondent to refund money or return property to a non-party consumer;
• direct the respondent to repair or provide parts for a product provided under a contract a contract at the respondent’s expense;
• direct the respondent to provide services to the non-party at the respondents expense; or
• direct the respondent to terminate or vary an interest in land that way created or transferred by the contract.^[3]

3.6.1 Remedies only available to Regulatory Bodies

In the ACL, a number of remedies have been made available exclusive to the regulatory bodies (i.e., ACCC and ASIC) where a company has contravened Part 2-3 of the ACL.

The first of these powers is the power issued under s. 223 of the ACL, which gives regulatory bodies the power to issue a written notice containing a warning about the conduct of a person.

Section 223 is as follows:

Regulatory bodies have also been bestowed with the power to issue substantiation notices. A substantiation notice requires the business upon which it has been issued to substantiate the claims that it has made in the marketplace. Furthermore, the regulatory body also has the power to request a person to produce documents that may evidence the representation. A business issued with a substantiation notice has 21 days in which to comply or apply in writing to the regulatory body for an extension of time. The power of regulatory bodies to issue substantiation notices is contained within s. 219 of the ACL. Providing false or misleading information in response to a substantiation notice may result in a pecuniary penalty being imposed on the business. Where a business fails to comply with a substantiation notice, the regulatory body may issue a public warning notice pursuant to s. 223(2) of the ACL.

As a final point on remedies, take note that the power given to regulatory bodies in s. 247 of the ACL, being the power of regulatory bodies to apply to the Court for an adverse publicity campaign, does not apply to a breach of Part 2-3.