Contractual Fairness : Statutory Innovation and Statutory Interpretation

Abstract

This chapter considers statutory innovation and statutory interpretation in two pieces of Australian legislation: the unfair contract terms law in the Australian Consumer Law, and unjust contracts under the Contracts Review Act 1980 (NSW). These provisions raise the challenge to interpret statutes which seek to give content to indeterminate value of fairness and justice. The analysis of the cases shows that the courts have faced up to the challenge of interpreting and applying open-ended criteria of unfairness and unjustness in both statutes respectively in articulating norms and precepts embodied in the provisions which reflect the values of community and society. The continued utility of both statutes, will rest, in part, on innovative and consistent application of statutory interpretation as well as sensitivity to the three disinclinations cautioned by Kirby P in West v AGC (Advances) Ltd (1986) 5 NSWLR 610.

Keywords: unfair contract terms, unjust contracts, statutory interpretation, Australian Consumer Law, Contracts Review Act 1980 (NSW)