CHOICE membership

Communicating with Retailer about Fair Trading Complaint

Have lodged a complaint with NSW Fair Trading about an NSW based online retailer who is not honouring a consumer guarantee on a purchase.

Due to the holiday period Fair Trading is yet to contact the retailer or look at the complaint.

In discussions with the retailer I’ve mentioned that I’ve lodged a complaint with Fair Trading and the retailer has asked for the complaint reference number.

Any downside to providing the reference number to the retailer at this stage?

Not looking to discuss the details or merits of the complaint, purely the pros and cons of providing the reference number before Fair Trading has undertaken any investigation (i.e. would it prejudice my position?).

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Well my thoughts are that firstly, the retailer has had trouble before and knows the process, and secondly, could be just trying to call your bluff. Get you to back off.
So, tell them.

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Assume you have followed this link for NSW Fair Trading.
https://www.service.nsw.gov.au/transaction/lodge-general-consumer-complaint

The embedded links say that after receiving the complaint FT NSW will contact both the customer and business individually to discuss the complaint.

There is no mention of any need to provide any further information to the business at that time. You could phone FT NSW and ask them if it is necessary, or appropriate.

That the store on being told you were lodging a complaint only asked for the ref number and not to discuss resolution further with you. It may be prudent not to provide that detail. After all the store likely has sufficient of your personal details, armed with the complaint number to act inappropriately, if that were the intent.

FT NSW will be trying to find all the facts independently of each party.

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Yes I have. Complaint was lodged in early December and contacted FT NSW on Monday to follow up. Due to the time of year it hasn’t been investigated.

All FT NSW asked for when I called was my reference number, full name and who the retailer was, so not that hard as you say. Whilst they could act inappropriately, that would be fraud and assuming calls are recorded (it says as much when you call FT NSW), would only serve to strengthen my case. Once they have been contacted by FT NSW they would have those details anyway?

Was trying to avoid sitting on the phone on hold to FT NSW, but will follow up.

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Ok, didn’t they ask for any further details concerning the complaint at that time, as per the general complaint form?

Or had you already registered the complaint online and had the system issue a reference number.

Yes, I am speculating on why the store asked for that detail. Perhaps it has no significance. If the store was keen to resolve it would not need the action you have taken. It sounds like they may be accustomed to the routine. Is there any further benefit in assisting them at this point in time?

Hopefully your wait on the phone is not too long.

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Yes, I had made the initial complaint through the online form and was following up on the progress.

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Do you have more details of who the store was and what problems with the product you are having? While you may not think it is important, it may be useful to other consumers who jay deal with the same business or have/plan to purchase the same product. Having a log of product problems can assist in determining if the fault is a one off or reoccurrence.

The provision of a reference number shouldn’t pose any issues. They possibly have requested the reference so that when Fair Trading make contact, they can link it to your customer file…possibly making response and potential for resolution quicker. It seems a reasonable request of the business.

Also providing the reference number could work in your favour as it could be seen that you are willing to assist with a speedy resolution.

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I don’t wish to disclose those details until my issue is resolved for a couple of reasons:

  • I don’t want to prejudice my claim in anyway by discussing specific details on a public forum
  • I am cautious of making sure any statements are not potentially defamatory
  • I want to give the retailer the opportunity to do the right thing first.

I’ve reviewed the manufacturer’s community support forums and there are similar issues.

One thing I am unsure of, is which avenue I’m left to pursue the matter with should NSW FT be unable to assist with resolving it. I reside in Queensland and the retailer is in NSW. I’m struggling to find how interstate consumer disputes can be resolved.

The recent High Court of Australia Ruling in Burns v Corbett; Burns v Gaynor [2018] HCA 15 (https://gracelawyers.com.au/high-court-bowls-over-ncat-nsw-powers-to-make-decisions/):

Where any party to a dispute resides in another State/Territory outside of NSW, NCAT cannot hear the dispute and it will need to be taken to a Court.

However, unlike NCAT, QCAT (which deal with “complex disputes”) has been held to be a court of record so has been treated as a court of the State: Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170. That means QCAT may be unaffected by this High Court decision. However the Owen case was considered way before this High Court decision.

This would imply that I would need to pursue any matter through the NSW Small Claims Court, which is a more costly and complex process. Alternatively, I could pursue through QCAT, however I can’t find any information to clarify whether QCAT has the jurisdiction and will hear disputes involving interstate parties. The QCAT website also states that staff won’t answer jurisdiction questions as it’s considered legal advice.

FT NSW in several instances offer to provide further advice on where to go if they cannot resolve the matter.

In the reverse of your situation,

FT NSW has spoken with you and has your formal complaint. There is some hope they can point you to the next step, if the complaint is not resolved adequately.

Per @phb previous suggestion/advice,

There is an assumption that in pursuing consumer rights all of the facts and claims on the business are reliably documented. There are several other threads in the community and on the Choice Consumer web site detailing how to best press for resolution under ACL. If you have missed it one recent thread.

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Definitely documenting all correspondence and facts of the matter.

I did see that. Given the prevalence of online shopping and interstate trade, there should be information available to assist consumers in understanding the process when dealing with parties located in different states.

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You have seen this

From Qld Office of Fair Trading

Assume NSW has similar buried somewhere in their system?

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As FT NSW really don’t do much as they lack a lot of power to correct issues, you may also wish to prepare a case to lodge with New South Wales Civil & Administrative Tribunal.

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That deals with making a complaint which I did review. Yes FT NSW has a similar statement but it is only from the perspective of a NSW consumer dealing with an interstate business.

As @grahroll has indicated, and the respective websites state, these departments have a mediation rather than an enforcement role in a dispute. There is limited easily digestible information about which tribunal has jurisdiction if it escalates to NCAT or QCAT. So far I’ve had to read through a bunch of practice directions and legislatoin in an attempt to answer that. I did speak to FT NSW and they advised the case manager will discuss further options if mediation is unsuccessful.

Back to the original query, FT NSW has told me there is no need to provide them with the case number as they will receive it in due course when the case manager reviews the information I’ve provided and contacts them. FT NSW is also pretty busy at the moment dealing with complaints from COVID cancellations and the usual Christmas rade.

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To find out which CAT may be your option you can get free legal advice and they should be very able to direct you to which CAT.

NSW Free Legal Advice

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In NSW NCAT has a register of errant vendors and service providers. You can look at this register free by accessing it from the NCAT website. The register has been kept for a couple of years now and you can go back as far as you need. Whilst they don’t give details of specific complaints you can see the name of the organisation and the type of complaint that has been made. This could at least help you determine whether this company has a track record of complaints to NCAT (FT).

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I haven’t been successful in finding it. Are you able to provide a link or directions to where on the website it’s located?

The retailer has maintained their position that they won’t provide a refund as the product is out of the factory warranty, and Fair Trading has said I’ll need to pursue with the tribunal. Looks like I’ll need to prepare my case.

Anyone know of any cases or details I can look at which establish the reasonable life of a network switch?

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From many reports of others who went to a tribunal, be aware even if you win the tribunals do not have enforcement powers. You will have to take their determination to a court if the company is, as it appears, not impressed by laws.

The attitude of the retailer seems very well entrenched. I’d not want to take my business to them.
Do you think you are able to share some of the details of the retailer, brand or product?

Hope you have some success with NCAT, knowing that might not be the last step.

@kp2000 here is the link to the complaints register in NSW:

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Thanks. Looks like they had 11 complaints in June 2020, but no others.

I’m not sure whether to go QCAT, NCAT or NSW Small Claims Court given the interstate jurisdictional issues. Terms and conditions of sale were:

Any dispute arising out of or related to these Terms and Conditions or the sales transaction between Company and Customer shall be governed by the laws of the State of New South Wales or as defined by the Australian Consumer Law.

I assume this means I will need to pursue via NSW rather than from Queensland?