Consumer Claims (Vic)
In Victoria, consumer claims are covered by the Australian Consumer Law and Fair Trading Act 2012. This Act adopts Australian Consumer Law (ACL) that is set out in the Competition and Consumer Act 2010 (Cth). ACL is administered by Consumer Affairs Victoria (CAV). This articles deals with consumer claims about goods and services.
Under Australian Consumer Law, businesses must guarantee their products and services. The guarantees provide consumer rights when products or services are defective.
Products must be safe, lasting, have no faults, look acceptable and be fit for purpose. They must also:
- match all descriptions, on packaging and in advertising;
- come with full ownership and undisturbed possession;
- not carry hidden debts or charges;
- meet any extra promises, such as lifetime guarantees;
- have spare parts and repair sites available unless a consumer is told otherwise.
- be provided with sufficient care, skill and technical knowledge and avoid loss and damage;
- provide results agreed by the parties;
- be delivered in reasonable time when there is no end date.
Misleading and deceptive conduct and unconscionable conduct
Section 18 of the ACL states a business must not mislead or deceive a consumer, whether the business intends to or not. Misleading conduct includes conduct that is liable to mislead the public about the nature, characteristics, suitability or quantity of goods or services.
Under section 21, the business also must not engage in unconscionable conduct, where it takes advantage of power imbalance between itself and the consumer. This conduct includes a business exerting undue influence or pressure on a consumer, or failing to disclose risks to a consumer.
Unfair contract terms
Under section 23 of the ACL, a contract between a business and a consumer is void if the contract contains an unfair term and the contract is a standard form contract (one where the consumer has little or no opportunity to negotiate the terms). A term is considered unfair if it:
- would cause a significant imbalance in the parties’ rights and obligations under the contract;
- is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by it;
- would cause detriment to a party if it were to be applied or relied on.
Unfair terms include those which allow one party (and not the other party) to breach, vary or renew the contract, or to avoid or limit performance of the contract.
False or misleading representations
Section 29 of the ACL makes it an offence for a person to make false or misleading representations about goods or services. Such false or misleading claims may be that:
- goods are of a particular standard, quality, value, grade, composition, style or model;
- services are of a particular standard, quality, value or grade;
- goods are new;
- a person has endorsed goods or services;
- there are facilities available to repair goods or supply spare parts;
- there is a requirement to pay for a contractual right.
First steps in a dispute
A consumer should always first try to negotiate a resolution with the business, either in person, by phone or by email or the business’s social media page. Details of the conversation should be kept, including the name of the person, the date and the content of the discussion. Depending on the complaint, the consumer can request a refund, repair or replacement. If the problem is not resolved, the complaint should be put in writing. If the dispute is still not resolved, there are several options.
CAV’s conciliation service is facilitated by a CAV officer. To be eligible for the service, an attempt must have been made to resolve the dispute; the dispute must not have been handled by, or be pending in, the Victorian Civil and Administrative Tribunal (VCAT); and there must be a reasonable chance of resolution. Participation is voluntary and any determination is not binding.
Victorian Civil and Administrative Tribunal
VCAT can determine consumer disputes in several ways, including:
- referring a dispute to a mediator;
- ordering money be paid or refunded;
- ordering specific performance under a contract;
- ordering rescission of a contract.
This body investigates complaints about actions of government authorities. Its other functions are to:
- conduct alternative dispute resolution;
- provide education and training;
- review complaint-handling processes of authorities.
After considering a dispute, the Ombudsman can recommend, for example, that:
- the matter be referred to an authority to be determined;
- action be taken to deal with the effects of the administrative action;
- practices be varied;
- laws be adjusted;
- reasons be given for an administrative action.
CAV can take compliance and enforcement action against businesses who do not abide by consumer guarantees. In 2020 cases included action against:
- a real estate agency for alleged underquoting and making misleading representations about property sale figures.
- a man who ran a car trading business without holding a car trader’s licence. He was convicted and fined $12,500 and ordered to pay costs of $5000.
- fundraisers who raised money while unregistered, and failed to meet their legal obligations to bank appeal money and keep records. They were fined $13,000 and ordered to pay costs of $8500.
- a man who managed a retirement village while he was insolvent and within five years of a conviction for an offence involving dishonesty or fraud. He was fined $12,000 and ordered to pay more than $29,000 in costs.
For advice or representation in any legal matter, please contact Armstrong Legal.