ACL - Does it work for consumers?

Did anything come from this review, or are we still stuck with the same old mess as before?

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Hi @cameron_eldridge,

According to the Australian Consumer Law Review - Final Report released in April last year, the consumer affairs ministers were scheduled to meet in late 2017 to determine a consolidated position. I haven’t seen any news on the issue so far though.

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Hi @cameron_eldridge, work is ongoing on this.

The ACCC is currently working on a project with the intention of updating their guidance on how long products should last (beyond warranty periods), and the difference between ‘major’ and ‘minor’ failures.

CHOICE is also in the early stages of a research project on consumer guarantees and consumer expectations, that we hope to use to produce our own guidance. In short - watch this space!

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In the context of this thread, is that really the problem though?

For me, at least, the problem is there’s no way for consumers to easily execute their rights under the ACL. Even if the ACCC issues guidance as to appropriate warranty periods, the action, and problem, still remains the same for consumers, that they need to undertake a lengthy and expensive (relatively speaking) court process to actually get that.

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Your comment about state consumer affairs offices is right on the money but I can only speak of it from my particular state. In all my years I have never had a positive outcome in making a complaint to them. They are offices of consumer affairs by name only. I call them the armchair detectives or the telephone detectives because they never leave the office. Would not bother to contact them about anything, they are only a distraction when you could be following other lines of inquiry.

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In regard to several threads on the Choice site including about Lenovo, Samsung, TVs, [quote=“darylhutchins, post:1, topic:15011”]
You think Samsung is bad … try Lenovo.
[/quote][quote=“CaitlinB, post:1, topic:14977”]
Have had a gut full of Samsung
[/quote]

We continue to see the line/statement that the ACCC does not deal with individual cases and uses them to decide if a particular issue is worth more followup. I then read a reply by @PhilT that indicated a site works closely with the ACCC and they report breaches on their site to the ACCC to get action:

“We also work closely with the ACCC and reserve the right to submit all our findings to them. Note that ACCC has fined a number of companies for fake review submissions.
The ACCC can issue an infringement notice where it has reasonable grounds to believe that a person has contravened certain consumer protection laws. For serious misconduct, the ACCC can seek court penalties. The maximum penalty is $220,000 for an individual and $1.1 million for a body corporate, per breach.”

If what is stated above is true why aren’t the ACCC issuing more “infringement notice[s] where it has reasonable grounds to believe that a person has contravened certain consumer protection laws”. Why are they so reticent to take action? If more action was taken, I think more positive results from complaints would result and less legal hardship for consumers would transpire.

But the question could be asked is the ACCC really only there to act as a circuit breaker to protect most businesses from consumer action and that they only act when the situation is so dire that inaction would bring politicians into a discomfort zone.

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Wink wink, know what you mean, know what you mean! I myself have called the ACCC ‘window dressing’ on more than one occasion.

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I agree alf BUT NCAT do not publish decisions made in the tribunal unless there is a bigger public interest in doing so. They now have a complaints list but it really doesn’t tell you anything. The reason? They all hide behind the Privacy Legislation. I had a major issue (for me) with a builder. I took action in NCAT four times (the builder just wouldn’t show up, then appeal the decision on the grounds it wasn’t fair to him etc etc), won every time and got a financial judgement. NCAT cannot enforce their own orders so off to court you go. I did. The builder ignored orders from the court. Back I went. Got a garnishee order on his bank account (he’d emptied it because he had to be informed that was what I was doing!). Back to court I went - I even had to go to Federal Court - TWICE! I won every single case yet still the builder ignored all payment orders. 6 years on and I still have not received the compensation. At all stages the ‘rights’ of the builder took far more precedence than me his victim. Upshot was, even if you are judged to have a case, ACL does not protect you at all. State bodies cannot enforce their own orders, and in the case where you have a contract with a business (even when that business is a one man band and the owner does the work, sells the goods etc) you cannot sue the individual for poor work. This builder had no penalty to pay and continued working as before. Meanwhile I was out of pocket not only buy the amount I had paid him but I had to have the work completely redone by another builder. I found out later that he had been taken to NCAT (at least) twice before and lost each time. You cannot find this information on his registration. Oh yes I forgot to mention, he was registered and certified by Fair Trading! As Mr Bumble said in Oliver Twist: “The Law is an ass!” and consumer law does not protect the consumer at all.

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I too had this experience.

Many years ago, after winning judgements against a builder, he declared himself bankrupt. Apparently ALL the assets were in his wife’s name so he lost nothing of real value. I was told I had no chance of getting any money ever.

And guess what? He was back in business for himself the following week using a retired builder’s licence.

No cost to him, yet I’ve got a home that needed fixing, and I’m out of pocket big time.

No help from any of the government bodies at any level.

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One would think part of bankruptcy should be a requirement to pay judgements against you, and that should be possible on a scheme modelled on HECS repayments. It gives the bankrupt a chance to start again and it gives the damaged party a shot at getting something back. But the concept of equitable justice in the civil system has always been too hard since many business people and wealthy use bankruptcy as a tool to protect their assets, and the pollies salute them.

Edit: Where this falls apart is that the legal system treats a commercial entity as a person when it suits, but not as a person when it suits. Hence if someone has a legal entity more complex than an individual sole trader they bankrupt as a non-entity. Simplistically if the builder was Builder Inc, Builder Inc can bankrupt or go into administration and leave everyone with nothing, and Mr.Builder can start New Builder Inc that has no obligation for Builder Inc’s debts or dodgy practices, aka phoenixed company. Whether corporate officers should be held liable in civil law for corporate debts can be an interesting discussion in itself.

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Completely agree.

The legal eagles said that it wasn’t worth pursuing him as his business a shell company, and he was bankrupt. Yet, like Christopher Skase, he could maintain his chosen lifestyle and career uninterrupted and unhindered by all the people he had wronged.

As I am wont to say, our courts are about the law, and not about justice.

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The are supposed to intersect, but as laws are the provenance of pollies what are the chances?

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So true! My lawyers and barristers have said the same thing when I’ve stated ‘I just want justice’ (idealistically thinking that the law was there to protect us).
From my experience the law is there for criminals and making lawyers rich… that’s it.
I have , in the past, contacted ASIC with proof of a director breaking all the rules. ASIC agreed whole heartedly that they were doing exactly that but told me it was up to me to take them to court.
I tried NCAT after my VW sunroof leaked from slack servicing and wrote the car off… they sent a very old gentleman up from Sydney to hear the case… he admitted he didn’t have time to read the case and awarded the other side because I did not have enough “expert evidence”… totally going against NCATs own regulations!
My opinion is the law in this country is failing all but the criminals and lawyers.

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It is not just Australia or our xCATs.

I once participated in an international trade dispute court where the lead commissioner (eg judge) was on record as saying ‘the only thing I know about this topic is what I learn from my teenage son.’ 100% of the preferred winner’s ‘evidence’ was taken at face value and perhaps 50% of the ‘guilty as claimed’ side’s expert testimony was ignored. The ‘preferred side’ won.

The judicial system is not just about law, it is also about procedure and the procedure is often above law and justice is not in the equation excepting as embodied (or not) in law and procedure. Since lawyers will defend your rights to your last dollar, and lawyers have a strong influence in the drafting of legislation, any surprises there?

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This sounds similar to my experience at NCAT in 2016. At the first group list hearing, the tribunal member made it quite clear that she was treating my case as if it was one of poor vehicle servicing by the car dealer, when in fact it was a matter of fraud in that the vehicle odometer had been wound back before sale. The dealer claimed that his company had been wound-up, but brought no evidence to the hearing.

The tribunal member asked if I wanted a follow-up hearing, to allow time for evidence of the company’s financial standing to be produced. I said yes.

At the second hearing, a different tribunal member cut to the chase, and agreed that I had been overcharged in the original sale, and was owed a refund. He couldn’t have been more different to the first ! It seems that it is the luck of the draw when you attend a hearing :persevere: The dealer showed up, but still brought no evidence with him “because he wasn’t told to do so by the tribunal”.

It took action through the local court to obtain the financial details of the company. Long story short, there was nothing left, and I got no refund.

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Would I be correct thinking the principle is in business again under another business name, perhaps with similar dodgy practices and no relevant history available to warn the general public?

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I’ve done some extensive searching for both the dealer principle and his wife, and have turned up zilch.

For the time being, at least, it seems that they have gone to ground.

At the NCAT hearing, I couldn’t help but laugh when he said, “I’m not a shonky used car dealer ! I’ve been in business for more than 15 years. That wouldn’t be the case if I was shonky.”. In the next breath, he’s telling the tribunal that he’s no longer in business. He explained this as being due to “changing market conditions”. :roll_eyes:

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I seriously believe directors should have numbers rather than companies… the reality is it’s not the companies that are dodgy (as they are just bots dressed in suits) but the people who run them. You can shut down a company and move on but it would be a bit harder to shut down a person and move on one would think.

I am in court with a guy who has had so many dodgy companies and phoenix operations that you’d think it would be easy to see what’s going on but since his wife is a barrister, they’re well versed in the ‘peculiarities’ of our legal system… so 3 years on and a hideous amount of money and I’m still living a Kafka novel.

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Maybe there is a new business opportunity for Choice, being the enforcers of the ACL where they take action against businesses on behalf of disheartened consumers… just like the RSPCA does for animal protection legislation.

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Sometimes people put the companies in their child’s/children’s or third parties names to avoid their name/s appearing on company searches (look at the Tax Haven companies). The Trust documents attached to that often are more reflective of the control wielded by people.

Shareholders then only become holders in trust or non-beneficiary shareholders. Easy to do and these days almost cut and paste to write the documents.

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