The Law Handbook 2024

720 Section 7: Consumers, contracts, the internet and copyright Trading Act 1999 (Vic) (‘ FTA ’), and since 1 July 2012, under the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘ ACL&FTA ’). The ACL&FTA does two things: it gives VCAT power to resolve a ‘consumer and trader dispute’ as the FTA did, and it provides that the Australian Consumer Law ( ACL ) applies as a law of Victoria. The ACL now contains many of the ‘consumer protection’ provisions that were contained in the FTA – such as the prohibitions of ‘misleading and deceptive’ and ‘unconscionable’ conduct – and it creates a series of ‘consumer guarantees’ about the quality of goods and services instead of expressing them as implied terms of a contract. Because legislation does not operate retro­ spectively, the FTA will continue to be relevant to transactions entered into up to 30 June 2012. The changes to the legislation relating to small claims that took place over the years are: 1 On 1 July 1998, VCAT commenced operation. The Small Claims Tribunal that had existed before then in effect became part of VCAT, and claims that would have gone before the Small Claims Tribunal are now heard in the Civil Claims List of VCAT and are known as ‘civil claims’. The procedure followed by VCAT is found in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘ VCAT Act ’) and on VCAT’s website (www. vcat.vic.gov.au) . 2 On 1 September 1999, the FTA commenced operation. Until 30 June 2012 the FTA empowered VCAT to resolve a ‘consumer and trader dispute’. Since 1 July 2012, the same power, expressed in the same words, is provided by the ACL&FTA. 3 On 12 December 2001, the Fair Trading (Unconscionable Conduct) Act 2001 (Vic) commenced operation. This Act inserted new sections 8A and 8B into the FTA, which prohibit unconscionable conduct in business transactions (i.e. trader–trader disputes). Since 1 July 2012, the same concepts are contained the ACL. 4 The Fair Trading (Amendment) Act 2003 (Vic) came into operation on 9 October 2003. One of the purposes of the amendments was to increase consumer protection. It also repealed the Small Claims Act and gave VCAT a small claims jurisdiction where the amount involved does not exceed $10 000. 5 The Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic) (‘ WLAAIR Act ’) commenced on 1 January 2004. In certain cases, the Act requires VCAT to apportion liability where there is more than one wrongdoer, and create threshold levels for a personal injury to be considered a ‘significant injury’ and therefore compensable (see Chapter 10.1: Negligence and injury, for more information about these changes). 6 From 1 June 2004, conditions and warranties previously found in the Goods Act were transferred to the FTA to strengthen its role as the major consumer protection legislation in Victoria. Except in the case of supply of ‘recreational services’, implied warranties and conditions cannot be cancelled by the trader. ‘Recreational services’ covers a broad range of physical, sporting and adventure tourism activities. These implied warranties continue to apply in transactions that occurred before 31 December 2010: from 1 January 2011 the ACL applies. The Goods Act itself was not repealed and continues to be important in relation to traditional areas such as the rules about who bears the risk when goods are transported between seller and buyer. 7 Disputes between residents and managers of retirement villages that were previously required (prior to 5 April 2005) to be resolved by arbitration, now may be determined by VCAT (s 40 Retirement Villages Act 1986 (Vic)). 8 On 31 December 2007, the Owners Corporations Act 2006 (Vic) came into force. This Act renamed ‘bodies corporate’ created under the Subdivision Act 1988 (Vic) as ‘owners corporations’ and provides that disputes may be brought before VCAT. Consumer Affairs Victoria has published the Guide to Owners Corporations , which is available for download from its website. Also see Chapter 6.5: Owners corporations. 9 By an amendment to the FTA that came into force on 1 July 2010, made by the Fair Trading Amendment (Unfair Contract Terms) Act 2010 (Vic) (‘ FTAUCTA ’), new laws about unfair terms in standard form consumer contracts were enacted, applying to standard form consumer contracts entered into, varied or renewed on or after 1 July 2010. The FTAUCTA was intended to be transitional and when the ACL became the law of Victoria on 1 January 2011, the ACL contained those laws. 10 By another amendment to the FTA that came into force on 1 January 2011, made by the Fair Trading Amendment (Australian Consumer Law) Act 2010