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Consumer Claims in South Australia

Consumer claims in South Australia are mostly handled by Consumer and Business Services (CBS) which forms part of the Attorney-General’s department. There are however, a range of statutory bodies which have also been established to deal with consumer claims in SA. These include the Australian Competition and Consumer Commission (the ACCC) the Telecommunications Ombudsman which deals with complaints relating to telecommunication services and the Energy and Water Ombudsman for complaints relating to energy and water supply.

On January 1 2011 the Competition and Consumer Act 2010 (Cth) (known as the Australian Consumer Law) came into force, replacing the old Trade Practices Act 1974 (Cth). The introduction of this new national law meant that state based legislation such as the: Consumer Transactions Act 1972 (SA), the Manufacturers Warranties Act 1974 (SA) and a number of provisions of the Fair Trading Act 1987 (SA) now no longer apply.

The Fair Trading Act 1987 (SA) still operates to a limited extent providing authority in relation to the following:

  • Industry codes;
  • Fair reporting;
  • Third party trading schemes; and
  • Additional consumer protection provisions such as those for recreational services.

The majority of consumer claims in SA however are now covered by the Australian Consumer Law.

Both the Fair Trading Act 1987 (SA) and the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth) applies to consumer claims in South Australia.The role of the Consumer and Business Services (CBS)

The office of Consumer and Business Services was established to help consumers understand their rights under the Australian Consumer Law. The CBS also explains the practical aspects of consumer law in how it relates to consumer claims in SA and to help consumers negotiate with businesses when a consumer claim arises.

The Australian Consumer Law sets out expectations of business conduct as well as fair trading and consumer protection. This law applies exactly the same in each Australian state and territory, meaning that no matter where you are in Australia you are afforded the same protection.

In addition to providing a wealth of information on consumer rights and tips on how to negotiate with businesses, CBS representatives are available to provide advice and, in certain circumstances, may be prepared to become involved in the negotiation process.

Kinds of consumer claims in South Australia

The provisions of the Australian Consumer Law operate to protect consumers from misleading and deceptive, unconscionable or unfair conduct by businesses and service providers. One of the ways the law does this is by implementing consumer guarantees.

A consumer guarantee is a guarantee that must be offered by all business and service providers on products that they hire, lease or sell for under $40,000.00 irrespective of any other warranty on the product or service. For products hired, leased or sold that are over $40,000.00, the consumer guarantee applies if the goods or services are bought for household or personal use.

These types of guarantees include things such as the following:

  • The right to a refund, replacement or repair when a product is faulty or not fit for the purpose for which it was sold;
  • A right to the cancellation of a service when the service does not meet the description provided by the salesperson or in promotions or advertising; and
  • When a service was not performed with proper care and skill.

Making a consumer complaint in South Australia

If you have a problem with a business or service provider you can phone, email or visit the Consumer and Business Services CBD office for consumer advice.

In order for CBS to assist you, you will need to provide them with the following information:

  • Your full name;
  • The business or service providers name and location; and
  • A description of your complaint.

You can also report a business or service provider without requesting assistance by contacting the CBS reporting line on 131 882.

Negotiation after a consumer complaint

If your complaint is unable to be resolved at the complaint stage, you can make a request for a CBS representative to become involved in negotiations. In order for CBS to become involved in the negotiation process of a consumer claim in SA, you must first ensure the following:

  • The goods or services are covered by a consumer guarantee;
  • You have proof of purchase or a receipt;
  • That you have contacted the business or service provider and made a genuine attempt to resolve the matter; and
  • You have kept a record of all contact with the business or service provider detailing your attempts to resolve the matter.

Commencing Litigation

If negotiations fail, a consumer claim in SA can be initiated against the business or service provider. For disputes less than $12,000, a minor civil action can be commenced in the Magistrates Court. In SA, the Tribunal does not deal with consumer claims. Disputes of transactions between $12,001 and $100,000 are to be commenced in the Courts’ general claims division. For claims over $100,000, they are dealt with by the District and Supreme Courts of South Australia.

Before commencing legal action, a notice of intention to sue in the form of a Final Notice of Claim (Form 1A) should be given to the business or service provider. This gives the other party 21 days to take action to resolve the dispute or begin meditation.

If you have not heard back from the business or service provider after 21 days you can lodge a court claim. To commence proceedings, you will need to complete a Minor Civil Action Claim (Form 3) which you will then be required to serve on the other party.

To complete a Form 3 Claim form, you will need the following information:

  1. The amount you want to claim;
  2. The name and address of the supplier (if a company, you need the correct name and registered address, and if it is a business, you will need the name of the owner and correct business name and address);
  3. The date(s) of the dispute; and
  4. The reason you think you are owed money.

The business or service provider will then have 21 days to respond, by either resolving the dispute or contesting the claim by filing a defence and or counterclaim.

Prior to the matter proceeding further, the court will encourage the parties to reach an agreement or send the matter to mediation provided both parties agree to it otherwise a date will be set for trial.

In the minor claims section of the Magistrates Court, matters are dealt with less formally, are inexpensive and parties are not entitled to lawyers except in special circumstances.  The cost to commence a minor claim is approximately $140. You must commence the claim within three years of when the dispute first arose.

You may request that a lawyer assist you in preparing your case but the lawyer will not be allowed to appear in court on your behalf.  The court may grant permission for a lawyer to appear, in such cases where the other party is a lawyer, if both parties request a lawyer or if one party will be unfairly disadvantaged by not having a lawyer.

Important considerations

Prior to commencing legal proceedings, it is important to remember that even small civil claims can be costly endeavors and although you might think that you have a strong case, there are no guarantees that you will win. Prior to commencing any legal action it is important to take into consideration the time, cost and stress involved with pursuing the dispute.

Remedies

The remedies you may receive if an item or service does not meet a consumer guarantee, depends on the problem, the amount you paid and the time which has passed since you made the purchase. These remedies may include the following:

  1. A refund;
  2. A repair;
  3. A replacement or exchange;
  4. Compensation; and / or
  5. Cancellation of the contract.
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