Jetstar Airways Pty Ltd v Free

[2008] VSC 539

Supreme Court of Victoria

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For Australian Law.

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Interrogate

Catchwords

1. Fair Trading
2. › Unfair terms in consumer contracts
3. › Definition of 'unfair term'
4. › Role of 'contrary to the requirements of good faith'
5. › Whether separate element or merely adjectival
6. › Fair Trading Act 1999 (Vic), s 32W
1. Fair Trading
2. › Unfair terms in consumer contracts
3. › Assessment of unfair terms
4. › Relevant considerations
5. › Whether regard must be had to other contractual terms including price
6. › Whether regard must be had to alternative products available to consumer
7. › Fair Trading Act 1999 (Vic), ss 32W, 32X
1. Statutory Interpretation
2. › Construction of consumer protection legislation
3. › Relevance of UK and EU legislative origins
4. › Whether expression derived from foreign legislation should receive similar interpretation
1. Appeal
2. › Appeal from VCAT on questions of law
3. › Whether misconstruction of statutory test constitutes error of law
4. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148

Quick Take

The expression 'contrary to the requirements of good faith' in s 32W of the Fair Trading Act 1999 (Vic) is a separate element of the test for unfairness, not merely an adjectival qualifier of 'significant imbalance'. The word 'significant' in 'significant imbalance' means 'sufficiently significant to be characterised as unfair', not merely 'important or of consequence'. In assessing unfairness, the decision-maker must consider the contract as a whole — including countervailing benefits such as a low price — and relevant external circumstances including the availability of alternative products with different terms and conditions. The AAPT construction of s 32W is not to be followed.