Trade Practices Compliance Manual

4. Unconscionable conduct

Unconscionable Conduct is using your superior bargaining power to take advantage of a person with a special disadvantage. Some examples of a special disadvantage are: sickness, infirmity of body or mind, illiteracy, or lack of assistance or explanation where it is considered necessary.

The Trade Practices Act prohibits commercial conduct which is unconscionable at common law or in equity and both common law and equitable remedies may be awarded for a breach of this nature.

The University shall not engage in conduct that is unconscionable having regard to, the following:

1. the relative strengths of the bargaining positions of the parties;
2. whether the consumer was able to understand the documentation;
3. whether undue influence or pressure was exerted or unfair tactics used;
4. whether the consumer was required to comply with conditions which were not reasonably necessary for protection of the supplier's legitimate interests;
5. the amount for which and the circumstances under which the consumer could have acquired equivalent goods or services from the supplier.

Remedies include compensation for damage or loss suffered, injunctions, declarations, variation of contract and refund of monies paid.

There are no penalties for breach of these provisions.

Warning Signals of Unconscionable Conduct

• Dealing with persons where the bargaining power is unequal.
• Dealing with persons who are disadvantaged in some way.
• Dealing with persons in relation to goods or services of a personal, domestic or household nature.
• Complex transactions.

DO

• encourage the other party to have independent legal advice in relation to complex transactions;
• explain the nature of the transaction carefully.