Exclusion Clause Validity in Australian Consumer Law: A Report

This report provides an analysis of exclusion clauses within the framework of Australian Consumer Law. It examines the implications of such clauses on consumer rights and the validity of contracts. The report delves into the legal principles governing exclusion clauses, including the circumstances under which they are enforceable and the limitations imposed by the Australian Consumer Law, such as Section 18 of the Australian Consumer Law, which addresses misleading or deceptive conduct. It references key legal cases, including Davis v Pearce Parking Station and Thomas National Transport (Melbourne) Pty Limited v May and Baker (Australia) Pty Limited, to illustrate the application of these principles. The report also addresses the requirements for incorporating an exclusion clause into a contract, such as providing adequate notice, and considers the implications of unfair contract terms. The case of Sally and the Public Transport Authority is used to highlight the importance of these considerations. The report emphasizes the importance of consumer protection and the circumstances under which exclusion clauses may be set aside to protect consumers.

Running head: CONSUMER LAW OF AUSTRALIA 1
Consumer Law of Australia

CONSUMER LAW OF AUSTRALIA 2
Exclusion Clause
The exclusion clause in a contract implies the imposition of a limitation with regard to
rights of a person thereby leading to the waiver of liabilities of the other party to the contract
accordingly. As far as the Consumer Law in Australia is concerned, the exclusion clause
would imply the exploitation of consumers to a certain extent. However, conducting breaches
in a deliberate manner would lead to the setting aside of the exclusion clause accordingly as
far as the protection of consumers is concerned. Section 18 of the Australian Consumer Law
which is laid out by Schedule 2 of the Competition and Consumer Act of 2010 implies that
any conduct which implies the consumer being deceived or misled cannot involve the waiver
of liabilities accordingly (Howells & Weatherill, 2017). It also involves the aspect pertaining
to unfairness as far as the terms and conditions of the contract are concerned accordingly. As
a result, it is imperative that a comprehensive solution is to be provided to the aggrieved
consumer as a result of the exclusion clause as far as the aspect pertaining to breach of
contract is concerned accordingly. In the case of Davis v Pearce Parking Station, it was held
by the High Court of Australia losses arising due to the authorised acts under the contract
shall imply the application of the exclusion clause accordingly even if the act implies
negligence. However liabilities would be imposed accordingly with regard to the performing
of the acts not authorised under the contract accordingly (Boundy, 2016). Same approach was
undertaken by the High Court of Australia in the case of Thomas National Transport
(Melbourne) Pty Limited v May and Baker (Australia) Pty Limited. If the delivery to the
consumer is through sea accordingly, then the exclusion clause of the contract is not
applicable in the instances pertaining to the deviation of the route of the ship as held by the
High Court of Australia in the case of Thomas National Transport (Melbourne) Pty Limited v
May and Baker (Australia) Pty Limited. In order to imply the validity of the exclusion clause
in a consumer contract, the aspects which are essential with regard to the incorporation of the
clause into the contract in the desired manner include signature, notice and prior related
dealings as far as the circumstances and facts are concerned accordingly. It is imperative
from the facts and circumstances of the scenario provided that there was no notice placed on
the open manhole in which Sally fell. As a result, the exclusion clause relating to no liability
for injury on part of Public Transport Authority is not applicable as far as the rule laid down
by the Civil Division of the Court of Appeal of England and Wales in the case of Parker v
South eastern Railway Company in which it was held that reasonable steps must be
undertaken in order to bring the aspect to the notice of the consumer accordingly. Such
reasonable steps have not been taken on part of Public Transport Authority.

CONSUMER LAW OF AUSTRALIA 3
References
Boundy, C. (2016). Business Contracts Handbook. 4th ed. Abingdon: Routledge.
Howells, G., & Weatherill, S. (2017). Consumer protection law. 4th ed. Abingdon: Routledge.