Help and remedies

Contributed by Nick Seddon, originally amended by Cathy He and Jane Black (NT Law Handbook), as amended by Adam Thompson and Andrew Tan, Consumer Law Centre ACT and current to March 2022

Self-help

In the first instance a consumer should raise their complaint with the trader concerned. The trader may concede the complaint and offer to remedy it in some way. The complaint should be made to someone in a position of authority and preferably to someone other than the person involved in the original transaction, if possible. Where there is a reasonable basis for complaint, most reputable traders are likely to provide a refund, exchange the goods or repair the defect.

Consumer should act promptly. If the trader does not respond to a complaint, the ACT Office of Fair Trading may be able to assist with negotiations (see Government assistance).

Consumers routinely withhold payment when a dispute arise with a trader. Sometime this may be justified but it depends very much on the circumstances. For example, withholding the entire cost of a plumbing job when it is 90% finishing would not be justified.

Nonetheless, withholding payment can be risky and a consumer should always obtain legal advice before refusing to carry out the terms of any contract.

If a consumer decides to breach their contract by withholding payment, it is quite possible the trader will take court or Tribunal action, or contact a debt collector. If the consumer knows the trader is about to start court proceedings, they should seek legal advice immediately.

Government assistance

ACT Office of Fair Trading

The Office of Fair Trading (ACTOFT) is the local agency that assists and protects businesses and the community through the administration of fair trading legislation. The main objectives are to provide information to consumers to make them aware and confident when making purchases and to make businesses aware of their obligations and responsibilities under the Australian Consumer Law.

The ACTOFT has responsibility for enforcing a wide range of legislation. This is done through:

• scheduled compliance programs including inspections of licensed premises;
• identifying and investigating potential breaches of legislation;
• educational and awareness activities to assist traders and licensees in meeting their legislative requirements;
• providing advice and information to consumers, traders and the broader community; and,
• responding to complaints.

Fair Trading considers a number of factors when initiating an investigation for non-compliance and deciding on appropriate action to take including:

• the nature of the breach;
• the jurisdiction – in the ACT or not;
• the number of complaints received against a business;
• the previous compliance history;
• the seriousness and consequences of the breach;
• how the breach can be rectified – education, advice, in the presence of an inspector;
• the likelihood of a suitable outcome; and,
• the effective use of resources.

Complaints received are prioritised so that the most critical complaints can be responded to first. This may result in little or no action being taken on a complaint that is assessed as a low priority complaint. Complaints are prioritised on the following:

• a successful resolution is necessary immediately to rectify threat of any serious injury;
• whether blatant breaches of the legislation are alleged and specific evidence or information has been provided by the complainant to support these;
• the number of people affected or that could be affected or disadvantaged by the alleged issue; and,
• whether there is a systemic or recurring issue.

Please note that ACTOFT staff are unable to provide legal advice nor are they able to assist in business-to-business disputes.

The ACTOFT contact information:

Telephone: 13 22 81 – (Access Canberra)
Web: https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/2270/~/fair-trading-for-consumers
Mail: GPO Box 158, Canberra City ACT 2601

Australian Competition and Consumer Commission

The Australian Competition and Consumer Commission (ACCC) is an independent Commonwealth statutory authority whose role is to enforce the Competition and Consumer Act 2010 and a range of additional legislation, promoting competition, fair trading and regulating national infrastructure for the benefit of all Australians.

The ACCC’s role is to protect, strengthen and supplement the way competition works in Australian markets and industries to improve the efficiency of the economy and to increase the welfare of Australians.

This means they will take action where this improves consumer welfare, protects competition or stops conduct that is anti-competitive or harmful to consumers, and promotes the proper functioning of Australian markets.

ACCC priorities are reflected in four key goals:

1. maintain and promote competition and remedy market failure;
2. protect the interests and safety of consumers and support fair trading in markets;
3. promote the economically efficient operation of, use of and investment in monopoly infrastructure;
4. increase our engagement with the broad range of groups affected by what we do.

ACCC initiatives also include promoting consumer education in regional and rural areas and with indigenous communities.

The ACCC’s role complements that of state and territory consumer affairs agencies who administer mirror consumer protection legislation in their jurisdictions.

ACCC Contacts:

ACCC Information line (open Mon-Fri 8:30am-5:30pm AEST/AEDT) 1300 302 502
ACCC Indigenous Infoline 1300 303 143
Small Business Helpline 1300 302 021

The local ACT ACCC office is located at:
23 Marcus Clarke Street
Canberra ACT 2601

The ACCC website is www.accc.gov.au.

The ACCC also runs the Scamwatch website: www.scamwatch.gov.au

You can also contact the ACCC through social media:

• ACCC Consumers Rights facebook page https://www.facebook.com/ACCCConsumerRights
• ACCC Product Safety facebook page https://www.facebook.com/ACCCProductSafety
• ACCC Indigenous consumers facebook page www.facebook.com/ACCCYourRightsMob
• ACCC Twitter @acccgovau https://twitter.com/acccgovau

Australian Securities and Investments Commission

The Australian Securities and Investments Commission (ASIC) is Australia's integrated corporate, markets, financial services and consumer credit regulator. ASIC is an independent Commonwealth Government body and is set up under and administer the Australian Securities and Investments Commission Act 2001 (ASIC Act). They also carry out most of our work under the Corporations Act 2001.

The ASIC Act requires ASIC to:

• maintain, facilitate and improve the performance of the financial system and entities in it;
• promote confident and informed participation by investors and consumers in the financial system;
• administer the law effectively and with minimal procedural requirements;
• enforce and give effect to the law;
• receive, process and store, efficiently and quickly, information that is given to us;
• make information about companies and other bodies available to the public as soon as practicable;
• take whatever action we can, and which is necessary, to enforce and give effect to the law.

ASIC's ‘MoneySmart’ consumer website (https://www.moneysmart.gov.au) offers free, and independent guidance so you can make the most of your money.

For help or information contact:

ASIC's Infoline on 1300 300 630.

The local ACT office is located
Hu Australia Civic Quarter, Level 1/68 Northbourne Ave
Canberra ACT 2600

Through the Tribunal and courts

If consumers are unable to resolve their dispute with the business, they can seek a remedy in the Tribunal or courts.

Claims of $25,000 or less must be brought in the ACT Civil and Administrative Tribunal (ACAT). The Tribunal is like a court in many ways but has the advantage of being less formal, less expensive and quicker. In addition, unlike tribunals in other Australian jurisdictions, ACAT can deal with ACL and personal common law actions, for example: negligence, trespass, defamation, and assault and battery. It can also deal with equitable and personal injury claims.

Compared to a court, the ACAT claims procedure is simplified. If in doubt, counter staff can provide some procedural assistance but cannot provide legal advice. Civil Dispute Application forms can be downloaded from the ACAT website at http:// www.acat.act.gov.au.

After a claim is lodged, the respondent (defendant) will receive a copy of the claim and a civil dispute response form. The respondent has 21 days (if served personally) or 25 days (if posted) to lodge a response (defence). If the respondent does not lodge a response within time, the applicant may apply for default judgment. A default judgment is a judgment given in favour of the applicant by virtue of the respondent not defending the claim.

If a response is lodged, ACAT will set the matter down for a conference. The aim of the conference, with the assistance of a registrar or tribunal member, is to attempt to negotiate an outcome the parties can accept. Discussions in the conference are confidential. If the matter is not resolved at conference, the matter will be set down for a hearing. For claims of $3000 or less the conference and hearing will usually be held on the same day. From claims of above $3000 they are held on different days. The failure of a party to attend a conference or hearing may result in adverse order being made against that party.

ACAT is designed for parties to represent themselves, although they can be represented by a lawyer if they wish. Legal costs are generally not awarded against the losing party. At most, a losing party can be required to pay the other party’s court fees being the filing fee, ASIC search fee, hearing fees and the like, if any.

If a consumer has a claim worth more than $25,000 and they wish to bring proceedings in ACAT, the consumer must abandon their claim above $25,000. Alternatively, ACAT can hear claims above $25,000 if all parties agree. However, this rarely happens in practice.

Like a court, for a claim to succeed before ACAT it must be proven on the balance of probabilities (the civil standard of proof). This means that the claimant must convince the Tribunal that it is more likely that not the facts relevant to the claim occurred – “there is no room for a finding that it might have happened” (Re B [2008] UKHL 35 per Lord Hoffman). Many consumer claims fail because claimants have not prepared their case well and have insufficient evidence to support their claim. How much evidence you will need depends very much on your case. A typical case involving a dispute about a kitchen renovation can require: witness statements, a timeline of events, emails and other correspondence, diary notes, photos, expert reports, invoices and receipts, terms of the contract, and submissions.

For consumer claims above $25,000 and up to $250,000, proceedings must be brought in the ACT Magistrates Court. Seek legal advice if this is the case as court procedure rules are complex.

ACL jurisdiction

The ACAT and the Magistrates Court have jurisdiction to hear an ACL claim with an interstate connection only if the respondent is a resident of the ACT or at least a material part of the cause of action arose in the ACT (s 262 Magistrates Court Act 1930). Section 11 of the Fair Trading (Australian Consumer Law) Act 1992 (ACT) does not enlarge the jurisdiction of ACAT for ACL matters: Maxwell v Bedding (Australia) Pty Ltd (Civil Dispute) [2016] ACAT 64.

For example:

• if the cause of action arose in the ACT but the respondent is resident interstate - ACAT has jurisdiction;
• if the cause of action arose interstate and the respondent is resident in the ACT - ACAT has jurisdiction;
• if a material part of the cause of action arose in the ACT but part of the cause of action arose interstate and the respondent is resident interstate – ACAT has jurisdiction;
• if the respondent is resident interstate and the cause of action arose interstate - ACAT does not have jurisdiction.

Limitation periods

The following time limits apply for bringing a civil claim before ACAT or a court:

For consumer claims:

• against a supplier – 6 years from the cause of action;
• against a manufacturer – 3 years from the cause of action.

For contract claims:

• against a supplier – 6 years from the cause of action.