Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (44 of 2010)

Schedule 2   Enforcement and remedies under the Trade Practices Act 1974

Part 4   Orders to redress loss or damage suffered by non-party consumers etc.

Trade Practices Act 1974

18   After section 87

Insert:

87AAA Orders to redress loss or damage suffered by non-party consumers etc.

Orders

(1) Without limiting the generality of section 80, if:

(a) a person engaged in conduct (the contravening conduct ) in contravention of a provision of Part IVA, of Division 1 or 1AAA of Part V or of Part VC; and

(b) the contravening conduct caused, or is likely to cause, a class of persons to suffer loss or damage; and

(c) the class includes persons who are non-party consumers in relation to the contravening conduct;

the Court may, on the application of the Commission, make such order or orders (other than an award of damages) as the Court thinks appropriate against a person referred to in subsection (2) of this section.

Note: The orders that the Court may make include all or any of the orders set out in section 87AAB.

(2) An order under subsection (1) may be made against the person who engaged in the contravening conduct or a person involved in that conduct.

(3) The Court must not make an order under subsection (1) unless the Court considers that the order will:

(a) redress, in whole or in part, the loss or damage suffered by the non-party consumers in relation to the contravening conduct; or

(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party consumers in relation to the contravening conduct.

Application for orders

(4) An application may be made under subsection (1) even if an enforcement proceeding in relation to the contravening conduct has not been instituted.

(5) An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.

Determining whether to make an order

(6) In determining whether to make an order under subsection (1) against a person referred to in subsection (2), the Court may have regard to the conduct of the person, and of the non-party consumers in relation to the contravening conduct, since the contravention occurred.

(8) In determining whether to make an order under subsection (1), the Court need not make a finding about either of the following matters:

(a) which persons are non-party consumers in relation to the contravening conduct;

(b) the nature of the loss or damage suffered, or likely to be suffered, by such persons.

When a non-party consumer is bound by an order etc.

(9) If:

(a) an order is made under subsection (1) against a person; and

(b) the loss or damage suffered, or likely to be suffered, by a non-party consumer in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and

(c) the non-party consumer has accepted the redress, prevention or reduction;

then:

(d) the non-party consumer is bound by the order; and

(e) any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non-party consumer; and

(f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.

Other

(10) Subsection (1) has effect subject to section 87AB.

Note: Section 87AB may limit the liability, under an order made under subsection (1) of this section, of a person for his or her contravention of section 52 (which is about misleading or deceptive conduct) or involvement in such a contravention.

(11) This section does not apply in relation to contravening conduct that occurred before the commencement of this section.

87AAB Kinds of orders that may be made to redress loss or damage suffered by non-party consumers etc.

Without limiting subsection 87AAA(1), the orders that the Court may make under that subsection against a person (the respondent ) include all or any of the following:

(a) an order declaring the whole or any part of a contract made between the respondent and a non-party consumer referred to in that subsection, or a collateral arrangement relating to such a contract:

(i) to be void; and

(ii) if the Court thinks fit - to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);

(b) an order:

(i) varying such a contract or arrangement in such manner as is specified in the order; and

(ii) if the Court thinks fit - declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);

(c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;

(d) an order directing the respondent to refund money or return property to a non-party consumer referred to in that subsection;

(e) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that have been supplied under the contract or arrangement to a non-party consumer referred to in that subsection;

(f) an order directing the respondent, at his or her own expense, to supply specified services to a non-party consumer referred to in that subsection;

(g) an order, in relation to an instrument creating or transferring an interest in land (within the meaning of section 53A), directing the respondent to execute an instrument that:

(i) varies, or has the effect of varying, the first-mentioned instrument; or

(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument.