Consumer Rights and Remedies under Australian Competition and Consumer Act

This article discusses the rights and remedies available to consumers under the Australian Competition and Consumer Act. It covers the definition of a consumer, protection against misleading conduct, and remedies for supplier failures. The case of Sally, who purchased a Myki ticket from the Public Transport Authority, is used as an example to illustrate these concepts.

Running head: BUSINESS LAW
Business Law
Name of the Student
Name of the University
Author Note

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Question 1
In the present case, the issue that has arisen is whether Sally is a consumer. Whether Sally
has any rights and remedies as a consumer. Under the Australian Competition and
Consumer Act 2010 (Cth) the definition of the word consumer has been provided under
section 3. Consumer under the Act implies any individual who made a purchase of goods and
services, which are of domestic nature and has been a availed for being used in a private
capacity. For the purpose of rendering in individual making purchase of goods and services
for domestic or private use as a consumer the worth of the goods should not exceed $40,000.
There are certain rights that are available to the consumers coming under the purview of this
Act. Part 2 of the Act a consumer is required to be extended protection from any miss leading
are deceptive conduct of the supplier. Any unconscionable conduct on the part of the supplier
needs to be prohibited and strictly dealt with under this Act (Pearson, 2018). The consumer is
also required to be extended protection from any terms of the contract, which is unfair and
has been entered into in the furtherance of the obtaining of goods and services. Rights of the
consumer with respect to any failure on the part of the supplier has been provided under
section 267 – 269 of the Act. The section 259 provides consumer with the right to take action
against any such suppliers. This can further be supported with the case of Australian
Competition and Consumer Commission v Burden [2017] FCA 399.
In this case, Sally bought a Myki ticket from Public Transport Authority, which permitted
her to travel throughout Adelaide on public transport including tram, train and bus. This
makes a consumer under section 3 of the Australian Competition and Consumer Act 2010
(Cth). This is because she made a purchase of services, which are of domestic nature and has
been a availed for being used in a private capacity. The purchase of services has been made
for domestic and private use as the worth of the service did not exceed $40,000. All the rights

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that are available to the consumer will be available to her being the consumer under this Act.
Under Part 2 of the Act she is required to be extended protection from any misleading are
deceptive conduct of the supplier. Any unconscionable conduct on the part of the supplier
needs to be prohibited and strictly dealt with under this Act. Sally is also required to be
extended protection from any terms of the contract, which is unfair and has been entered into
in the furtherance of the obtaining of the services. Her rights with respect to any failure on the
part of the supplier has been provided under section 267 – 269 of the Act.
Question 2
The issue that has arising from the present situation is the remedies that are available to
Sally under the Australian Consumer Law and the possible remedies and penalties that might
be imposed upon the public transport authority for the breach of the Australian Consumer
Law.
In case a supplier has been acting in the contravention of the provisions of the Australian
Consumer Law, will be required to be applied with the provisions under section 267 to 269 of
the Act. The section 267 provides consumer with the right to take action against any such
suppliers. It has been in the case of Australian Competition and Consumer Commission v
Excite Mobile Pty Ltd [2013] FCA 350 that the conduct of the mobile company in charging a
cooling off fee of $75 and a charge of $195 imposed for the returning of mobile phone even if
only the box is damaged has been construed to be unconscionable. The court has ordered the
mobile company to pay penalties amounting to $455,000 and a suspension and personal
liabilities imposed upon the directors of a mobile company for indulging into unconscionable
activities. Under section 269 of the Act, the consumer who has been deprived of the rights
that has been extended to him under the Australian Consumer Law will have the right to
claim and recover all the expenses that he has been incurred with under the transaction as

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well as any expense incurred that has been incurred with in that furtherance. Under section
224 of the Act, any person who has been liable for the purpose of contravention of the
provisions of the Act, will be imposed with pecuniary penalties. Under section 228 of the
Act, the consumer is entitled to bring a civil action against the supplier for the purpose of
recovery of damages. Under section 237 of the Act, the consumer is entitled to receive
compensation from the supplier for any injury that has been caused by the supplier (Pearson,
2017).
In the present case, Sally bought a Myki ticket from Public Transport Authority, which
permitted her to travel throughout Adelaide on public transport including tram, train and bus.
On the Myki Ticket, the following words were printed in bold on the front that Public
Transport Authority will not be liable for any injuries or harm caused to the customers, once
they have completed their journey on the public transport including tram, train and bus. Sally
was in a hurry to reach ACA Academy, so she did not read the conditions on the ticket. These
conditions were intended to protect the Public Transport Authority from any claims or
damages to customers, who completed their journey but were still on the premises of Public
Transport Authority. On Elizabeth Road Railway Station, workers had dug up a hole to repair
the Railways, which remained unmarked and was not obvious. Public Transport Authority
forgot to place any Sign, Notice or Warning near the obstruction to protect customers or
public. Sally fell into the unmarked hole made by the workers of Public Transport Authority
and fractured her right leg. Due to her injuries, she was unable to work at Tranmere Grocery
shop and she was also unable to attend ACA Academy. An injury has been caused to her for
the acts of the supplier of the service, hence she will be extended a remedy under section 237
of the Act, where the consumer is entitled to receive compensation from the supplier for any
injury that has been caused by the supplier.

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Question 3
Exclusion clause depicts a condition contained in the contract entered into parties that
restrains certain rights belonging to the parties to the contract under general principles of
common law. For the purpose of imposition of the same, such a clause needs to be notified to
the person upon whom it needs to be e imposed. Notification must be extended prior to the
formation of the contract. This can further be illustrated with the case of Chapelton v Barry
UDC [1940] 1 KB 532. In case the contract has been signed by the parties, the inclusion of
such a clause will not need any further notification. This can be illustrated with the case of
L'Estrange v Graucob [1934] 2 KB 394. It has been contended in the case of Thompson v
LMS Railway [1930] 1 KB, if the party needs to rely often the exclusion clause it needs to
establish that a proper notice of the same has been extended towards the aggrieved (Latimer,
2016).
Section 64 of the act any clause excluding any guarantee will be automatically rendered
void. There are certain guarantees that has been provided under the act. Under section 60 of
the act the services that has been rendered wire supplier need to be provided with new skill
and care on the part of the supplier. Understand 61 of the app the services needs to be fit for
the purpose that has been specified by the supplier. Under section 62 it has been guaranteed
that the supply needs to be made available to the consumer within a time which is reasonable.
Any exclusion clause that has been inserted within a contract to supply services that is in
violation of any consumer guarantee will be treated as void and the same cannot be imposed
upon a consumer. It has been contended by the court in the case of Australian Competition
and Consumer Commission v Chen [2003] FCA 897 that any exclusion clause that has been
imposed by the supplier for the purpose of excluding liability with respect to any misconduct
of the supplier will not be considered as enforceable. It has been held in the case of Laminex
(Aust) Pty Limited v Coe Manufacturing Co [1999] NSWCA 370 that the supplier should

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not be extended protection under any of the exclusion clauses, which aids him in evading
liability.

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References
Australian Competition and Consumer Commission v Burden [2017] FCA 399
Australian Competition and Consumer Commission v Chen [2003] FCA 897
Australian Competition and Consumer Commission v Excite Mobile Pty Ltd [2013] FCA 350
Chapelton v Barry UDC [1940] 1 KB 532
Laminex (Aust) Pty Limited v Coe Manufacturing Co [1999] NSWCA 370
Latimer, P. (2016). Protecting consumers from unfair contract terms: Australian comparisons.
L'Estrange v Graucob [1934] 2 KB 394
Pearson, G. (2017). Current Issues for Consumer Protection Law in Australia. In Consumer
Law and Socioeconomic Development (pp. 199-208). Springer, Cham.
Pearson, G. (2018). Enforcement and Effectiveness of Consumer Law in Australia. In
Enforcement and Effectiveness of Consumer Law (pp. 75-97). Springer, Cham.
The Australian Competition and Consumer Act 2010 (Cth)
Thompson v LMS Railway [1930] 1 KB