Brighton submitted that the clause was void for illegality because it excluded liability under section 18 of the ACL, relying on Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546, where it was found that it would be contrary to public policy for private agreements to oust Consumer Law remedies.
Multiplex submitted that clause 46 was a temporal limitation that was procedural in nature, and merely regulated, not ousted, the operation of the ACL. It relied on the New South Wales Supreme Court decisions in Lane Cove Council v Michael Davies & Associates  NSWSC 727 and Firstmac Fiduciary Services Pty Ltd v HSBC Bank of Australia Ltd  NSWSC 1122.
Justice Riordan considered that limiting the time in which a misleading or deceptive conduct claim can be brought under the ACL was “an unacceptable interference with the public policy underpinning the provisions [of the ACL].” His Honour noted that the extension of limitation periods (3 years to 6 years) was specifically identified in the Second Reading Speech to the ACL, as one of the mechanisms by which the public policy of consumer fairness would be achieved in the Consumer Law.
Further, Justice Riordan considered that uncertainty about whether Courts would decide that individual contractual time limits were or were not unreasonable, would be inconsistent with the public purpose of the ACL, to protect rights properly characterised as public rights.
Justice Riordan noted that while inconsistent with decisions of the New South Wales Supreme Court relied on by Multiplex, his conclusion was consistent with obiter of Justice Ball in the 2015 decision of Omega Air Inc v CAE Australia Pty Ltd  NSWSC 802 in the New South Wales Supreme Court.
While Justice Riordan upheld the Plaintiff’s objection regarding the operation of clause 46 of the subcontracts, His Honour found that the other findings of the special referee, in particular, that the alleged pleaded representations said to be implied from the tender documentation were not in fact made, should be upheld.
We would like to acknowledge the contribution of Cassie Mortimer in preparing this update.