This briefing paper examines the Consumer, Trader and Tenancy Tribunal, a super
tribunal that determines consumer, credit, motor vehicle, home building,
tenancy, strata, retirement village, and residential park disputes in New South
Wales. Commentary is given on the statutory provisions governing the Tribunal,
and illustrated by examples of the Tribunal’s decisions since it
commenced in February 2002. A recent history of consumer protection laws is
outlined to show the derivation of the jurisdiction and objectives of the
present Tribunal. Reference is also made to the complaint handling functions of
the Office (formerly Department) of Fair Trading, to clarify its relationship
to the Tribunal.
Recent history of consumer protection (pages 2-8)
The Consumer Protection Act 1969 established a Consumer
Affairs Bureau and a Consumer Affairs Council within the Department of Labour
and Industry, to respectively handle consumer complaints and advise the
Minister on consumer matters. A separate Department of Consumer Affairs was
created for the first time in 1976.
Statutory tribunals to deal with disputes between consumers and
providers of goods or services were authorised by the Consumer Claims
Tribunal Act 1974 . Subsequent legislation created specific bodies to
handle credit, tenant, home building, motor vehicle and other complaints.
One of the important statutes affecting consumers that was
introduced in the 1980s was the Fair Trading Act 1987 . It covers issues
such as misleading and deceptive conduct with regard to goods and services, and
mirrors the safeguards in Part V of the Trade Practices Act 1974 (Cth).
The Department of Fair Trading superseded the Department of
Consumer Affairs in 1995. In 1998, various separate tribunals were consolidated
into two bodies: the Fair Trading Tribunal and the Residential Tribunal. The
statutory review of the tribunals that was conducted after two years
recommended the merger of the tribunals.
Procedures and powers of the Consumer, Trader and Tenancy Tribunal
(pages 9-23)
The Consumer, Trader and Tenancy Tribunal was created by the
Consumer, Trader and Tenancy Tribunal Act 2001 and commenced operation
on 25 February 2002. The Tribunal is comprised of 8 Divisions: General (ie.
general consumer claims), Motor Vehicles, Tenancy, Home Building, Commercial
(ie. consumer credit, licensing of travel agents, and commission fees of
property agents), Strata and Community Schemes, Residential Parks, and
Retirement Villages.
Some of the Divisions limit the amount of money that may be
claimed (eg. $25,000 in the General Division and $500,000 in the Home Building
Division), but others have no upper limit. The jurisdiction of the Consumer,
Trader and Tenancy Tribunal prevails over a court if at the time of the
application there were no proceedings pending in a court.
The Consumer, Trader and Tenancy Tribunal Act 2001
strongly encourages the parties to attempt conciliation before a formal hearing
is conducted by a Tribunal Member. Parties are normally expected to run their
own cases and pay their own costs, although legal representatives are allowed
and costs may be awarded in certain circumstances. These restrictions are
intended to make the Tribunal process quick, informal and affordable.
A party who disagrees with the determination of the Tribunal
can apply for a rehearing if specific criteria are met. An appeal may be lodged
with the Supreme Court on a question of law.
Office of Fair Trading (pages 24-26)
After the re-election of the Carr Labor Government in the State
Election in March 2003, the Department of Fair Trading became the Office of
Fair Trading, within the Department of Commerce. Consumers can lodge complaints
with the Office of Fair Trading, which can investigate the matter, assist the
parties in reaching a solution, or refer the complaint to a more appropriate
agency.
Fair Trading can pursue compliance action through various
methods including: issuing a public warning about unsatisfactory goods or
unfair business practices; instigating a product recall; suspending or
cancelling a licence; obtaining a written undertaking from a business; and
commencing court action for misleading or deceptive conduct and other offences
under the Fair Trading Act 1987 . In the Supreme Court, undertakings can
be enforced or injunctions obtained to restrain a person from particular
conduct or from carrying on a business.
New building reforms to protect consumers (pages 27-31)
Measures to enhance consumer protection in the building
industry are in the process of being implemented during 2003. The Building
Legislation Amendment (Quality of Construction) Act 2002 amends the Home
Building Act 1989 to encourage residential building disputes to be
investigated at an earlier stage. Specialist building inspectors from the
Office of Fair Trading will be able to visit building sites and issue
rectification orders. An application that has not undergone this procedure can
be declined for hearing by the Consumer, Trader and Tenancy Tribunal.
A new Office of Home Building, within the Fair Trading
portfolio, is planned to be fully operational by 1 July 2003. The Office is
intended to be the main point of contact for consumers with residential
building problems, although the Consumer, Trader and Tenancy Tribunal will
continue to be the relevant tribunal for formal determinations.