- Overview of legislation
- Disputes under the Fair Trading Act 1999
- Amendments to the Fair Trading Act - Australian Consumer Law (Victoria)
- Disputes arising from purchase of a used car from a licensed motor car trader
- What can the VCAT do?
- Making a claim
- Hearings
- Appeals
- Ensuring that orders of the VCAT are carried out
Victoria has for over 30 years had a small claims jurisdiction for the speedy, low cost resolution of small claims, initially under the Small Claims Act 1973 (Vic) ("Small Claims Act"), which was repealed in October 2003, and now under the Fair Trading Act 1999 (Vic) ("FTA").
There have been important changes to the legislation relating to small claims. Changes are summarised below.
- On 1 July 1998 the Victorian Civil and Administrative Tribunal (VCAT) commenced operation. Claims that previously came before the Small Claims Tribunal are now heard in the Civil Claims List of the VCAT and are known as "civil claims". The procedure followed by the VCAT is found in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act").
- On 1 September 1999 the FTA commenced operation. This Act empowers the VCAT to resolve a "fair trading dispute".
- 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).
- The Fair Trading (Amendment) Act 2003 (Vic) ("FTAA") 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 It also repealed the Small Claims Act and replaced it with a small claim jurisdiction where the amount involved does not exceed $10,000.
- The Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic) ("WLAAIRA") commenced on 1 January 2004. The relevant provisions in certain cases require the 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 18*1 Negligence and Injury, for more information about these changes).
- From 1 June 2004 conditions and warranties previously found in the Goods Act 1958 (Vic) ("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.
- Disputes between residents and managers of retirement villages previously required (prior to 5 April 2005) to be resolved by arbitration now may be determined by the VCAT (s.40 Retirement Villages Act 1986 (Vic)).
- On 31 December 2007 the Owners Corporations Act 2006 (Vic) came into force. This Act renames bodies corporate created under the Subdivision Act 1988 (Vic) as "owners corporations" and provides that disputes may be brought before the VCAT in the Owners Corporation List. Consumer Affairs Victoria has published the Guide to Owners Corporations, which is available for download from its website. Also see: Chapter 10*5 Owners Corporations.
- The Fair Trading Amendment (Unfair Contract Terms) Act 2010 (Vic) ("FTAUCTA") has been enacted to introduce in Victoria a national consumer law that will apply in each Australian jurisdiction. The FTAUCTA commenced operation on 1 July 2010 and applies to standard form consumer contracts entered into, varied or renewed on or after 1 July 2010. This Act was intended to be transitional and in fact applies to consumer contracts entered into or renewed between 1 July 2010 and 31 December 2010.
- The Fair Trade Amendment (Australian Consumer Law) Act 2010 ("FTAACLA") which came into operation on 1 January 2011 applies to contracts entered into or renewed on or after 1 January 2011. Its purpose is to apply Australian Consumer Law as a law of Victoria.
Consumer Affairs Victoria and consumer advice services should be able to provide advice to anyone contemplating an application. The Civil Claims application form and Civil Claims – Guide to Making an Application, both available online or from the Registry of the Civil Claims List, are most comprehensive and helpful (see also: "Making a claim", below).
The hearing is before a Member of the VCAT assigned to the Civil Claims List.
The Tribunal sits in the Melbourne Central Business District and in various country locations throughout Victoria.
Under the FTA, applications may be made to the VCAT to hear and determine consumer and trader disputes. Anyone contemplating such an application should seek advice first. Consumer Affairs Victoria and consumer advice services should be able to provide advice.
The following are important features of the jurisdiction under the Act.
An application to hear and determine a dispute:
- must involve a purchaser or possible purchaser and a supplier or possible supplier of goods or services, but either purchaser or supplier may initiate the application (s.110(a));
- may involve a dispute in negligence, nuisance or trespass;
- 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 if the claim is no more than $10,000.
There is no requirement in the 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.
Under section 108 of the FTA, the VCAT may make orders it considers fair, 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.
The 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 FTA fall into two categories: small claims (s.107A), which involve a consumer and trader dispute not exceeding $10,000, and any other dispute under the FTA. Where the claim under the FTA is a small claim, then the VCAT will not permit legal representation unless all parties agree or the VCAT is satisfied that there is good reason and that no party will be disadvantaged. If the dispute is a small claim, then the VCAT cannot order costs to or against a party (except costs relating to a review).
From 1 July 2010, the FTAUCTA made amendments to:
- for standard form contracts entered into, varied or renewed on or after 1 July 2010, replace most of FTA Part 2B (Unfair Terms in Consumer Contracts);
- define "consumer contract" (s.32(Y)(5)) as a contract for goods or services acquired wholly or predominantly for personal, domestic or household use or consumption;
- define a contact which is "unfair”(s.32W) to include a contract which contains significant imbalance in the parties' rights and obligations and lacks transparency;
- assist the Tribunal to determine whether a contract is a "standard form contract" by specifying in section 32ZDA(2) the matters to be taken into account, including whether one party prepared the contract without prior discussion as to terms and the contract was presented on a "take it or leave it" basis; and
- provide that a term is not unfair if it defines the main subject matter of the contract or the upfront price payable (s.32V).
From 1 January 2011, the FTAACLA adopted the Australian Consumer Law ("ACL") as law in Victoria applying to consumer contracts entered into or renewed after 1 January 2011. The ACL is contained in Schedule 2 of the Trade Practices Amendment (Australian Consumer Law) Act (No2) 2010, now see the Competition and Consumer Act 2010, which is a Commonwealth Act replacing the Trade Practices Act 1974.
The changes in legislation are explained to prepare parties for the information they may be expected to provide and the expressions they may read or hear when seeking advice or making or responding to a claim. However, as always, the VCAT will only require a party who is not legally represented to set out the facts concerning the contract, the breach alleged and the loss claimed but with special attention to the dates. A chronology is very helpful.
UNFAIR CONTRACT TERMS
Under the FTA, Victoria has had remedies for unfair terms in consumer contracts since 2003. Standard form consumer contracts entered into or renewed on or after 1 January 2011 are governed by the ACL. A contract is presumed to be a standard form contract unless proved otherwise. Most standard form contracts will be printed but need not be if the "take it or leave it" test applies. Matters to be considered by VCAT include:
- whether the contract was prepared by one party ahead of negotiations (e.g. a printed contract which requires little more than the customer details);
- which party held most or all of the bargaining power; and
- whether the contract could be negotiated to take account of specific details of the customer or the transaction.
A term in a standard form contract may be unfair, and void, if it creates a significant imbalance in the rights and obligations of the consumer compared to those of the trader. The onus is on the trader to prove that the term is reasonably necessary to protect their legitimate interests. The term must be "transparent" which includes being legible and in reasonably plain language.
CONSUMER GUARANTEES
The FTA and the Goods Act before it implied terms into consumer contracts to provide contractual rights with respect to defective goods or services. As of 1 January 2011, the ACT providers consumers with statutory consumer guarantees enabling a consumer to seek remedies against a supplier or manufacturer with respect to defective goods or services. Examples of consumer guarantees include:
- fitness for particular purpose
- goods to be of acceptable quality
- services provided with due care and skill
- services provided within a reasonable time where the contract does not fix a time
- manufacturer to ensure repair and spare parts are reasonably available.
ACCEPTABLE QUALITY
The test from 1 January 2011 is whether goods are of "acceptable quality" (before 1 January 2011 "merchantable quality"). The ACL sets out matters relevant to consideration of acceptable quality including:
- the reasonable, fully informed, consumer test
- whether fit for usual purpose
- whether appearance and finish acceptable
- whether safe and durable
- representations made by supplier and manufacturer including statements on the label
- faults specifically drawn to the customer's attention
- price
- opportunity for prior examination.
A supplier of goods has a right, at least once, to correct a defect. A written request to the supplier before commencing a claim in the VCAT should be considered.
Almost all claims in this area will be brought under the FTA. Only rarely will it be necessary to add a claim under the Motor Car Traders Act 1986 (Vic) ("MCT Act").
Since 1 March 1997, the statutory warranty provided by section 54 of the MCT Act has been amended to apply where the car:
- was manufactured not more than 10 years before the date it is sold; and
- has been driven for less than 160,000 kilometres.
The motor car trader warrants that if a defect appears before the end of the warranty period, the motor car trader will, at their own expense, arrange for the car to be taken to a place for repair and will repair or make good the defect so as to place the car in a reasonable condition, having regard to its age.
The warranty period extends until the car has been driven 5,000 kilometres, or for three months, whichever occurs first.
There are other amended provisions, for example, relating to roadworthy certificates, defect notices, definition of commercial vehicles, sales at public auction and odometer tampering. For further details, see: Chapter 14*3 Buying a Car, and refer to the Motor Car Traders (Amendment) Act 1996 (Vic).
If a customer purchases a used car that is not or is no longer covered by section 54 of the MCT Act (as amended), breaches of contract can still arise from misrepresentation or misdescription. A claim may also include or be based on an allegation of unconscionable conduct or unfair tactics. It may be possible to argue that the customer can rely on conditions implied by the FTA, such as merchantable quality and fitness for purpose, or can point to a breach of the Act.
The MCT Act provides in section 45 the remedy of cancellation of a contract for the purchase of a used car. This remedy is available in limited circumstances such as false odometer readings or false description.
A successful applicant should be aware of an amendment to the provisions of section 76 of the MCT Act, which enables a claim against the Motor Car Traders' Guarantee Fund where a VCAT order is unpaid.
The VCAT has the power to make the following orders under the FTA:
- order a party to pay money;
- order a party to perform work to rectify a defect in goods or services;
- order return of goods;
- order payment of damages including exemplary damages;
- order payment by way of restitution;
- vary a term of a contract or rescind a contract;
- order a contract to be performed;
- declare a term of a contract void and order a refund of money paid;
- order interest;
- declare that a debt is, or is not, owing; and
- order a party to do or refrain from doing something.
The VCAT has power to include in an order a requirement that what is ordered to be done be done within a specific time.
Where the parties to a dispute reach a settlement, the VCAT may make orders necessary to give effect to the settlement (s.93(1) VCAT Act). An applicant should always request that the VCAT make this order. The terms of settlement may include a liberty to renew the claim within an agreed time period where a promise is given to perform work.
To make a claim the applicant must first complete an Application to Civil Claims List form. These forms can be downloaded from the VCAT website at www.vcat.vic.gov.au (follow the links to "Application Forms–Brochures"), and are also available from the Registry to the Civil Claims List or, outside the metropolitan area, from the office of any Registrar of a Magistrates' Court.
It is the duty of the Registrar of the Tribunal and of every Registrar of a Magistrates' Court to give assistance in completing the application. Community legal centres, voluntary legal services and solicitors may also be of assistance in obtaining application forms and in filling them in.
The prescribed fees (as at 1 July 2010) are $37.90 for claims up to $9,999, and $314.10 for claims between $10,000 and $99,999. If the payment of the fee would cause financial hardship, the Principal Registrar has the power to waive the fee. It is anticipated that fees will increase annually, so current fees should be checked before making the application.
To lodge the application the applicant may either attend in person and pay the fee over the counter, complete and lodge an application form online with credit card details, or post the application with a money order, postal note, cheque or credit card details to: The Registrar, Civil Claims List. See above for all contact details.
If the applicant is a business, care must be taken to state the correct name of the company or business, with the Australian Company Name (ACN) or Australian Business Name (ABN) respectively supplied.
If an order made by the VCAT is to be enforceable, the trader(s) (respondent or sufficiently interested party) must be correctly named. It is the responsibility of the applicant to do this.
Check with the contract, quote, invoice or receipt for the full name of the trader.
A trading entity may be:
- a company (with a name ending in "Pty Ltd" or "Ltd" and a nine-digit ACN number);
- individual(s) or company(ies) trading under a registered business name; or
- an individual or partnership of individuals (e.g. husband and wife) trading under their own names.
Evidence of the trader(s) name(s) in the form of the ACN number or business name extract should be lodged with the application. A company search can be obtained from the Australian Securities and Investment Commission (go to www.asic.gov.au or phone 9280 3500 for details).
A business name extract must also be supplied. This can be obtained from Consumer Affairs Victoria (a fee applies) (see: "Contacts" at end of chapter). If the trader is an individual, it is important that full and correct names are stated on the application. Abbreviations or incorrect spelling could result in an unenforceable order.
The FTA (s.113A) enables a person to request VCAT to order the Director of Consumer Affairs to provide the full name and address of a supplier who is unregistered or unlicensed.
Likewise, it is important to state the trader's correct address. Check to ensure that the address you have is still current and, if not, obtain the current address before lodging the application. Where you have problems obtaining the correct details of a trader, Consumer Affairs Victoria may be able to help.
If a company has gone out of business or is unlikely to pay its debts, you may wish to request the VCAT (under s.60 VCAT Act) to join as a party to the proceedings any individual person who you believe is involved in a contravention of the FTA. The FTA specifically confers on a purchaser of goods or services the same rights to claim against a person who conducts antecedent negotiations as against the supplier of the goods or services.
In addition, if you believe the trader has engaged in misleading or deceptive conduct, then section 159 enables loss or damage due to a contravention of the Act to be claimed against any person involved in the contravention (such as a director or salesperson).
Goods may be purchased from a retailer (who made specific recommendations about them) and manufactured by another business (which manufacturing may be defective). Before completing the Application to Civil Claims List form, the applicant should carefully consider whether all persons and/or businesses who could be at fault have been named. For example, a defective tiling job could involve the builder, the tiler, the supplier of the tiles, the manufacturer or importer of the tiles or the supplier or manufacturer of the adhesive.
Since 1 January 2004, when amendments came into force relating to proportionate liability (enacted by the WLAAIRA), the VCAT will, in most circumstances, be required to apportion liability between each "concurrent wrongdoer". The VCAT will be required to find what proportion of the loss or damage claimed was each defendant's responsibility. For example, if a house is painted by a tradesperson using paint found to be defective, the Tribunal may apportion responsibility 60% as against the painter and 40% as against the manufacturer of the paint, or the evidence could lead to the proportions being reversed or found otherwise.
Sometimes the reason a person or business has not paid an account is because they are not satisfied with the goods or services supplied or believe they have been overcharged.
The consumer may lodge a Civil Claims application to claim compensation or to declare that they have been overcharged. The supplier of the goods or services would usually lodge an application for the price, identifying the application as a response or cross-application and providing the VCAT file number. Of course, applications could be made the other way around, with the supplier getting in first to claim the price and the consumer then lodging the cross-application.
To avoid delay or adjournment, it is very important that any cross-application be made as soon as possible after notice of the first application is received.
The Registrar will serve a copy of the application, as soon as practicable, on any person who it appears from the application has a sufficient interest in the resolution of the dispute to which the claim relates. The Registrar must also arrange a time and place for the VCAT to hear the matter, taking into account the convenience and location of the parties, the place where the contract arose and the venues at which the VCAT sits in its Civil Claims List. Notice of that time and place must be given to the respondent, and to the sufficiently interested party or parties.
The VCAT is committed to the use of alternative dispute resolution (ADR). It is important to carefully read any notice to attend the VCAT. The notice will advise the nature of the proceeding, whether it is a hearing, directions hearing, compulsory conference or mediation. The consequences of non-attendance may be dismissal or determination in favour of the applicant if either the applicant or respondent respectively fail to attend.
It is important to prepare your case carefully and logically. Do not leave obtaining reports, quotations, witness statements, photos or the like to the last minute. Remember that what you complain about is likely to be contradicted by the other party; therefore, independent evidence may be crucial. Consider the possible response that the defect can be repaired and need not be replaced and ensure your evidence deals with this. If the VCAT accepts that replacement is the appropriate remedy, it may order that the goods be returned to the respondent. If you believe that this would entail risk of damage or expense then ensure your claim includes the additional cost.
It is still worthwhile seeing if the problem can be settled with the other party or parties after the claim has been lodged, since the respondent has received the notice of the claim and now has an indication that the applicant is serious about pursuing this matter. The respondent may not want to go to the VCAT and may be prepared to agree to requests. If the matter is fully settled, the claim can be withdrawn; if an uncleared cheque is received or a promise to do work is made, the claim can be adjourned or withdrawn with liberty to apply.
Proceedings before the VCAT are open to the public; but the VCAT can order that a hearing, or part of it, be held in private (s.101 VCAT Act).
In general, a party to the proceedings is required to present their own case. The VCAT may allow an agent to represent a party if the party is a body corporate, or if it is a matter of necessity (s.62 VCAT Act).
It is uncommon for legal representation to be allowed. A barrister or solicitor will not be allowed to represent a party unless:
- all the parties to the proceeding agree or the VCAT so directs; and
- the VCAT is satisfied that the parties, other than the party who applied for the appearance of a lawyer, shall not be unfairly disadvantaged (Schedule 1, cl. 28BB VCAT Act).
An applicant who, of necessity, needs someone to represent them should provide a written authorisation for the representative to hand to the VCAT.
Where the dispute under the FTA is not a small claim, costs may be awarded at the discretion of the VCAT (s.109 VCAT Act). The provisions relating to a small claim provide that no order for costs can be made for a consumer and trader dispute under $10,000 (except for s.120 VCAT Act re hearing applications).
If you are an applicant making a claim in the VCAT, you should follow the procedures given below on the day of the hearing of your claim.
Note that pre-hearing processes, such as compulsory conferences and mediation, are available to assist in settlement of disputes (ss.83–93 & Schedule 1, cl.28EE VCAT Act). Parties can contact the Registrar of the Civil Claims List for more advice.
As soon as you arrive, go to the office and let the reception desk or bench clerk know that you have arrived. Ask which room your matter will be heard in. If you wish you can sit at the back of the room where your matter will be heard to get an idea of what happens during similar hearings.
The matter will be heard by a Member, who should be addressed as "Sir" or "Madam". The Member sits at the front of the room behind a desk. You will sit at a separate desk, with the respondent and any interested party at your left.
The first thing a Member may do is offer the parties an opportunity to settle the matter. No one is advised to settle but parties are encouraged to do so.
If the matter is settled ask the Member to make an order according to the terms of the settlement.
If the matter is not settled, the Member will proceed to hear the case. You will be asked to present your side of the story. Written notes made before the hearing may assist you to do this. Take with you all the written documentation you have. Reports and quotation(s) will often be important parts of the evidence. Take photos of the goods which have broken, or the wall that has cracked, if it will help the Member understand what you are talking about. Where needed to explain a claim, a video can be part of your evidence (contact the VCAT beforehand to arrange for a VCR). If you have any witnesses, then make sure they come to the hearing with you.
It is best if you give your evidence first and then ask your witnesses to give their evidence. All oral evidence given at the hearing may be on oath or affirmation.
The Member will ask questions of you and your witnesses. The respondent is also able to ask questions.
If your witnesses cannot attend on the day, they can make a statutory declaration before a qualified witness, stating what they know about the matter. You can then hand this to the Member. Be aware that evidence given in person to the Tribunal, with the opportunity to ask questions, is likely to be given more weight.
After you have presented your side, the respondent gets the chance to respond to your claim. You will be given a chance to ask them questions about the things they or their witnesses say.
Care in the preparation of the case should ensure that evidence is not repeated. The VCAT may not permit additional evidence on a matter if it considers that the matter has already been fully covered (s.102(2) VCAT Act).
After both sides have put their case, the Member will decide the matter in accordance with the relevant law and make an order.
If a party does not appear at a proceeding, the Tribunal will resolve the issue in dispute on such evidence as is otherwise produced before it. The order made by the VCAT is lawful and as effectual as if the party had appeared and was fully heard.
If an issue in dispute is resolved in the absence of a party, that party may make an application for review to the VCAT within 14 days after the party receives notice of the order. An application for review must be made by way of statutory declaration stating the reason for non-attendance. All parties are invited to the hearing of the review. The notice of hearing will state whether the Tribunal will only hear and determine the application for review at that time or whether it will hear and determine the original claim afresh if the review is granted. If the hearing is for review only and the review is granted, the claim will be reheard at a later date. A party is not entitled to seek more than one review without leave of VCAT (r.6.10(1) Victorian Civil and Administrative Tribunal Rules 1998 (Vic) ("VCAT Rules")).
If it appears to a Member that there was sufficient reason for the party's absence an order may be made that the claim be re-heard (s.120 VCAT Act).
Further information relating to re-hearings can be obtained from the Civil Claims List Registry and from the VCAT Rules.
A settlement or order made by the VCAT under the FTA is usually final and binding on all parties, and there is no appeal from the order other than on a question of law (s.148 VCAT Act).
If the VCAT acts outside its jurisdiction or denies natural justice to a party, that party can also seek a remedy from the Supreme Court as these are questions of law.
The VCAT is required, if requested to do so by any person affected by a decision made or about to be made by it, to give that person a statement of the reasons for its decision. If the claim under the FTA is not a small claim a party may request written reasons within 14 days (s.117(2) VCAT Act). However, written reasons must be requested before or at the time of giving the decision where the claim relates to a small claim consumer and trader dispute. If you plan to ask for a written decision, a request at the outset of the hearing would be courteous.
If the VCAT makes an order requiring the payment of money by a party that was not present or represented at the hearing, the VCAT must cause a copy of that order to be given or sent to that party (s.116 VCAT Act).
Where the VCAT has made an order requiring money to be paid to a person and the money has not been paid, that person can enforce the order of the VCAT through the Magistrates' Court. This is done by filing, free of any charge, with the Registrar of the Magistrates' Court the following documents:
- a certified copy of the order of the VCAT; and
- a sworn affidavit stating:
- that the applicant is the person to whom payment is to be made under the order; and
- the amount of money that has not been paid.
When filing these documents, the applicant must choose the Magistrates' Court in the area where he or she lives or the Magistrates' Court in the area where the party required to pay the money lives or has a place of business. Once these documents have been filed, the order of the VCAT is deemed to be an order made by a Magistrates' Court and may be enforced accordingly. (See: "Enforcement of court orders", in Chapter 8*1 Debts).
If the trader against whom an order has been made is required to hold a licence, e.g. a motor car trader, a travel agent or a finance company, Consumer Affairs Victoria may be approached for advice regarding enforcement.
There are claims where the VCAT does not order the payment of money, but orders that work be done to rectify defects in goods or services or orders that goods be returned. Such orders that do not require the payment of money can be enforced by filing, at no charge, the following documents in the Supreme Court (s.122 VCAT Act):
- a certified copy of the order of the VCAT;
- a sworn affidavit as to non-compliance; and
- a certificate from a Member that the order is appropriate for filing in the Supreme Court.
Another way to ensure that non-monetary orders are carried out is for the VCAT to adjourn the proceedings either to a fixed date or without fixing a date, and give leave to a person in whose favour the order operates to renew the reference of the claim if the order is not complied with. To renew the reference of the claim, a person must notify the Registrar in writing that the order has not been complied with.
The Registrar then notifies the parties of the renewal of the reference, and at the new hearing the VCAT decides whether the order has been complied with and, if not, can make any order that it has the power to make, including the payment of money.
An order of the VCAT can be amended if it contains:
- a clerical mistake; or
- an error, arising from any accidental slip or omission; or
- a material miscalculation of figures, or any material mistake in the description of any person, thing, or matter referred to in the order.
A party seeking an amending order should obtain advice from the Civil Claims List Registry or refer to the VCAT Rules.
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SMALL CLAIMS: THE CIVIL CLAIMS LIST OF VCAT :: Last updated: Thu Jul 1st 2010