Catchwords:

CONSUMER LAW – unfair contract terms – standard form electronic consumer contract – arbitration clause contained in agreement accepted by click-through process – transparency – significant imbalance in parties’ rights and obligations – reasonable necessity to protect legitimate interests – operation of internal dispute resolution, mediation and AFCA processes – arbitration clause held unfair and void under ss 12BF and 12BG of the Australian Securities and Investments Commission Act 2001 (Cth)

ARBITRATION – application for stay and referral to arbitration under s 8(1) of the Commercial Arbitration Act 2010 (NSW) – arbitration agreement in consumer contract – legislative policy favouring arbitration – significance of arbitration clause in standard form consumer contract – whether arbitration agreement “null and void, inoperative or incapable of being performed” – effect of unfair contract terms regime on enforceability of arbitration agreement

REPRESENTATIVE PROCEEDINGS – Pt IVA of the Federal Court of Australia Act 1976 (Cth) – application to stay representative proceeding and refer dispute to arbitration – effect on group members – interaction between arbitration agreements and representative proceedings – supervisory and protective role of Court in relation to absent group members – notice and substitution considerations – appropriateness of relief sought

CONTRACTS – objective theory of contract – electronic contracting – click-wrap agreements – assent to online terms and conditions – incorporation of arbitration clause – significance of consumer understanding and contractual transparency