CONSUMER AFFAIRS VICTORIA

What can CAV do?
What should a consumer who has a complaint do?

Consumer Affairs Victoria (CAV) is the leading consumer protection and trade regulator agency in Victoria. As part of the Department of Justice, it protects the interests of consumers, particularly vulnerable and disadvantaged consumers, as well as educates and regulates industry to create a fair and safe trading environment.

Consumer disputes that CAV assists with include those regarding cars, travel, domestic building and renovation, household and electrical goods etc. CAV also assists with tenancy disputes such as repairs, eviction, bond and rent increases, as well as retirement village and owners corporation issues.

A separate agency, the Dispute Settlement Centre of Victoria (DSCV), which is also part of the Department of Justice, can assist by providing free advice and mediation with neighbourhood disputes concerning animals, trees, fences, noise and the behaviour of people.

CAV's and DSCV’s contact details can be found in "Contacts" at the end of the chapter. CAV provides free information and advice by telephone and via the CAV website at www.consumer.vic.gov.au.

Advice is also available at CAV’s Melbourne office and through the Justice Service Centres in Box Hill, Berwick and Broadmeadows (from late 2009) as well as in five regions: Morwell, Wangaratta, Bendigo, Ballarat and Geelong. Offices locations and information on regional outreach services are available on the CAV website (above).

What can CAV do?

ADVICE AND CONCILIATION

CAV provides advice to consumers, traders, tenants, landlords, residents and owners of rooming houses, retirement villages and caravan parks.

If consumers, tenants and residents have a problem they should try to resolve the issue first with the trader or landlord. If that fails, they should contact CAV for assistance.

CAV assists parties to resolve disputes through conciliation. Conciliation includes providing advice, discussing the issues and identifying the options to resolve the dispute and bring about a voluntary settlement. CAV conciliators cannot force a party to participate in conciliation, make a binding determination or force a party to accept a particular outcome.

In most cases, consumers, tenants or residents need to make complaints in writing. Complaints can be made online through CAV’s website (see above) or by requesting a Complaints Form. If a consumer does not feel confident about making a written complaint, they can seek assistance from a CAV office or community legal centre. For a full listing of community legal centres see: Chapter 2*4 Advice Directory.

Complaints for conciliation need to be within the requirements of CAV’s Conciliation Policy (which is available on CAV’s website). The key requirements are:

complaints must be within CAV’s jurisdiction;
an attempt must have been made to resolve the dispute with the trader or landlord;
the dispute must not have been determined by, or be pending in the Victorian Civil and Administrative Tribunal (VCAT) or the courts; and
there must be a reasonable likelihood that the dispute will be settled.

Indigenous consumers

CAV’s Indigenous Support Officers work with Indigenous communities and individuals to resolve consumer issues as well as provide advice on consumer, tenant, trader and landlord rights and responsibilities. (See: "Contacts", below for ICU contact details.)

SPECIALIST ALTERNATIVE DISPUTE RESOLUTION (ADR) SERVICES

CAV has two specialist ADR services to assist consumers to resolve particular types of disputes. The specialist ADR services are:

Estate Agents Resolution Service (EARS)

EARS deals with disputes concerning the conduct of real estate agents. EARS provides information and advice and, where a consumer not been able to resolve a dispute with an agent themselves, EARS provides a voluntary conciliation service. If a dispute is not resolved by conciliation, EARS will provide information and advice on what alternative avenues the consumer can pursue.

Building Advice and Conciliation Victoria (BACV)

BACV assists consumers and builders to resolve domestic building and renovation disputes. BACV is a joint initiative of CAV and the Building Commission. BACV can provide the following assistance:

advice;
voluntary conciliation services, where the consumer has first attempted to resolve the dispute with the building practitioner; and
where appropriate, a request can be made to the Building Commission for an inspection of the building work and a report as to any defective work. The report may be used by the conciliator to assist in the resolution of the dispute.

If a dispute has not been resolved, a party may take the matter further to the Domestic Building List of VCAT. See: Chapter 14*2 Domestic Building and Renovation Work, for more detailed information about domestic building and renovation work and building disputes. Alternatively, the consumer may make an application to the relevant builders' warranty insurer, if the builder has died, is insolvent, or has disappeared. (See: "Contacts", below, for contact details of BACV, the Building Commission, VCAT and other specialist ADR services.)

ADVOCACY

CAV funds the following community agencies to provide face-to-face advocacy services for vulnerable and disadvantaged consumers and tenants:

Tenants Union of Victoria;
Peninsula Community Legal Centre;
Housing for the Aged Action Group;
Consumer Action Law Centre;
Grampians Housing Network;
Quantum Community Care;
Delatite Community Health Care;
Advocacy & Rights Centre;
Diversitat; and
Community Connections Victoria.

Advocates can provide information and advice, negotiate with traders or landlords, prepare material and support consumers at VCAT hearings. Consumers and tenants/residents who contact CAV with a dispute may be eligible for referral to these advocacy services.

LAW ENFORCEMENT

CAV uses a range of criminal, civil and administrative measures to address non-compliance by providers of goods or services with the laws administered by CAV. These laws include the Fair Trading Act 1999 (Vic), Residential Tenancies Act 1997 (Vic), Motor Car Traders Act 1986 (Vic) and Domestic Building Contracts Act 1995 (Vic).

CAV is able to take legal enforcement action against traders in building, fair trading and fundraising, as well as in licensed occupations such as motor car traders and travel and real estate agents. Criminal proceedings occur only in serious cases of non-compliance.

CAV uses the following criteria for enforcement action:

jurisdiction – whether the conduct falls within CAV’s jurisdiction;
detriment – the extent of consumer detriment;
seriousness;
consideration of enforcement priorities;
culpability and history of alleged offender;
special circumstances; and
likelihood of success of enforcement action.

PRODUCT SAFETY

A key priority of CAV is to prevent serious injury or death caused by unsafe products. CAV’s role is to:

raise consumer and industry awareness and understanding of product safety issues;
conduct routine inspections of stores and importers to prevent unsafe products from being sold; and
remove products that are banned or recalled from sale and investigate complaints received.

A product safety complaint can be made online through CAV's website at www.consumer.vic.gov.au, and through the Toy and Nursery Safety Hotline: 1300 36 48 94.

What should a consumer who has a complaint do?

1. SELF-HELP

Either write or speak to the trader, or to a person of authority with the trader or the landlord. Explain your concerns and suggest a resolution (see: "Self-help" at the beginning of this chapter). Many complaints are resolved at this stage.

Visit CAV’s website at www.consumer.vic.gov.au and download the fact sheet containing the information that best relates to your problem. Have the fact sheet with you when you speak to the trader so that you can clearly state your rights and their obligations under the law. Having the right information will help you resolve the issue with the trader.

2. CONTACT CAV OR ANOTHER BODY

If you are unable to resolve the dispute with the trader or landlord, contact CAV or another appropriate body (see: "Contacts", at the end of this chapter).

CAV can provide advice and may be able to assist to resolve the dispute by conciliation. Consumers are generally required to make a complaint in writing to CAV or online through CAV’s website. Where the consumer needs urgent assistance, or is unable to make a written complaint, their complaint may be accepted over the telephone. You can also go into a CAV office to make your complaint.

3. INDIVIDUAL REMEDIES

If problems are unable to be resolved through advice and/or conciliation with traders or landlords, VCAT offers low-cost, fast access to tribunal hearings.

VCAT has unlimited jurisdiction to determine "consumer and trader disputes" under the FTA (s.107). (See: "Small Claims: the Civil Claims List of VCAT" earlier in this chapter for more details on how to make an application to VCAT. Also see: Chapter 21*3 Administrative Appeals Tribunals, for further information about VCAT processes).

A variety of remedies are available to consumers under the various Acts administered by CAV. For example, under section 108 of the FTA, VCAT has powers to:

refer the dispute to a mediator;
order payment of money owed or other damages;
vary any term of a contract;
declare that a term of a contract is void (including because it is an unfair contract term);
order specific performance of a contract term;
order the refund of any money paid under a contract; and
order rescission (cancellation) of a contract.

Vulnerable and disadvantaged consumers may be eligible for referral by CAV to advocacy services (see: "Advocacy", above), including representation before VCAT. In most cases, however, it will be up to the consumer to pursue remedies, either through an ADR scheme (see: "Contacts" at the end of this chapter), VCAT, or a court (see: Chapter 1*2 Courts).

At this stage, the consumer should seek legal advice, which is available free from a community legal centre. For a complete listing of community legal centres, see: Chapter 2*4 Advice Directory.

For further information on remedies available under current laws, see: Chapter 12*3 Consumer Protection Legislation.