The Law Handbook 2024

Chapter 7.4: Taking action as a consumer 721 (Vic), the ACL was made a law of Victoria. The ACL is part of a Commonwealth statute and has been adopted by all the states and territories as a law of their jurisdiction. 11 Commencing on 1 July 2012 the Australian Consumer Law and Fair Trading Act 2012 (Vic) replaced the FTA. It provides that the ACL is a law of Victoria. Consumer Affairs Victoria can advise anyone contemplating an application. The Civil Claims application form and the publication, Making an Application in the Civil Claims List (both available online and from the Registry of the Civil Claims List) are comprehensive and helpful (see also ‘Making a claim to VCAT’, below). The hearing is before a member of VCAT assigned to the Civil Claims List. VCAT sits in central Melbourne and in various suburban and country locations throughout Victoria. (See ‘Contacts’ at the end of this chapter.) Consumer and trader dispute Disputes under the Australian Consumer Law and Fair Trading Act Under the ACL&FTA, applications may be made to VCAT to hear and determine a ‘consumer and trader’ dispute. Anyone contemplating such an application should seek advice first. Consumer Affairs Victoria and consumer advice services should be able to provide advice. See ‘Consumer Affairs Victoria’, below. The following are important features of the jurisdiction under the ACL&FTA. An application to hear and determine a consumer and trader dispute: • must involve a purchaser (or possible purchaser) and a supplier (or possible supplier) of goods or services, and either onemay initiate the application; • may involve a dispute in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services; • may be brought by a consumer against the trader without monetary limit; • may be brought by a trader against a trader; • must be brought within six years; and • may relate to a personal injury that relates to the supply or possible supply of goods or services if the claim is no more than $15 000. Even though the word ‘consumer’ is in ‘consumer and trader dispute’, that expression does not only apply to ‘household purchases’. The definition refers to purchasers and suppliers, and so ‘business purchases’ are also covered (e.g. a newsagent could bring a claim in VCAT against a supplier of stationery, even though the newsagent bought the stationery to resell it). A claim based on ‘negligence’ that does not relate to the supply (or possible supply) of goods or services – such as a motor vehicle collision – cannot be taken to VCAT. Similarly, a dispute between neighbours over their dividing fence, or a dispute between the partners in a partnership cannot be taken to VCAT. Apart from the situation where a supplier sues a purchaser for less than $15 000, and the purchaser seeks to have the dispute heard in VCAT, there is no requirement in the ACL&FTA that an applicant pay any money demanded either to the respondent or into trust. However, a respondent may lodge an application by way of counter-claim against the applicant, and should quote the application number to ensure that both claims are listed together. VCAT may make orders it considers fair and according to law, including: • for payment of money found to be owing by one party (including the applicant) to another party; • for damages, including exemplary damages; • for interest; • to declare a term of a contract void; • for the performance of a contract; and • varying a contract to avoid injustice. VCAT may have regard to such matters as the intelligibility of the contract, the relative bargaining power of the parties, whether independent advice was obtained and whether unfair tactics were used. Disputes under the ACL&FTA fall into two categories: small claims (s 183), which involve a consumer and trader dispute not exceeding $15 000, and all other disputes under the ACL&FTA. Where the claim under the ACL&FTA is a small claim, then VCAT will not permit legal representation unless all parties agree or VCAT is satisfied that there is good reason and that no party will be disadvantaged. If the dispute is a small claim, then VCAT cannot order ‘costs’ to or against a party (except costs relating to a review), although if the applicant substantially succeeds in the case it can order the respondent to reimburse the filing fee and any hearing fees.