Consumer - trader claims

Contributed by Ian Macdonald and Su Mahalingham and current to 1 September 2005

ABOLITION OF THE SMALL CLAIMS TRIBUNAL

Before 1 May 2005, a consumer in dispute with a trader could go to the Small Claims Tribunal. This has now been abolished, and replaced with the Consumer-Trader Claims provisions in legislation dealing with the recently established Magistrates Court.

The word consumer is defined in the Magistrates Court (Civil Proceedings) Act 2004 (WA) (“MCCPA”) as a natural person who buys or hires goods otherwise than for re-sale or letting or hire, or for use in a business; and a natural person to whom services are supplied on a paid basis, otherwise than for the purposes of a business carried on by the natural person (MCCPA s.7(1)).

The word trader is defined in the same Act as a person carrying on a business of supplying goods or services. The definition of trader excludes an owner (landlord) within the meaning of the Residential Tenancies Act 1987 (WA), and also excludes a person in a profession such as law or medicine that is not ordinarily regarded as trade or commerce (MCCPA s.7(1)).

PROCEDURE FOR MAKING CLAIM

Minor Cases Procedure

A consumer who wishes to make a claim against a trader of no more than $7,500 can make a claim under the Minor Cases Procedure. The procedure is set out in sections 11 to 15 of the Magistrates Court (Minor Cases Procedure) Rules 2005. The consumer lodges a claim in the form approved by the Court. The Court arranges for service of it on the trader and any other party to the case. The Court then gives the matter a date for a listing conference. At a listing conference, which the consumer must attend in person, the Court may order the parties to attend before a mediator, or attend a pre-trial conference, or may list the case for trial.

The normal rule for a case dealt with under the Minor Cases Procedure is that no legal representation is allowed (MCCPA s.30). The Court may give a party leave to be represented in a consumer-trader claim under the Minor Cases Procedure if all parties agree, or if the Court is satisfied that none of the other parties will be unfairly disadvantaged as a result (MCCPA s.30(5)).

The normal rule in a case dealt with under the Minor Cases Procedure is that legal costs are not awarded against an unsuccessful party. A successful party may be allowed reimbursement of the Court filing fees and service fees paid by a successful party, and the costs of enforcing a judgement (MCCPA s.31).

A consumer filing a claim under the Minor Cases Procedure would normally pay a fee of $63. This fee must be waived in the case of the consumer being the holder of a card entitling them to Commonwealth Health concessions, a person under 18 years of age, and a person receiving AUSTUDY, ABSTUDY, or legal aid in relation to those proceedings. Details of other fee waiver provisions are set out in Regulation 8 of the Magistrates Court (Fees) Regulations 2005.

General Procedure

A consumer wishing to make a claim against a trader in a case where the sum claimed is more than $7,500 but not more that $50,000 can bring a consumer-trader claim under the general procedure in the Magistrates Court.

Under the general procedure, a consumer making a claim up to $25,000 pays a filing fee of $161, and on a claim exceeding $25,000 the filing fee is $257. The same rules about fee waiver apply under the general procedure of the Magistrates Court as in the Minor Cases Procedure.

Under the general procedure, the normal rule is that any party is entitled to be represented by a lawyer (MCCPA s.44). A successful party is normally entitled to an order that the whole of its costs be paid by an unsuccessful party (MCCPA s.25).

Copies of these Acts and Rules may be obtained from the State Law Publisher at 10 William Street, Perth, or from its website: www.slp.wa.gov.au.