|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The Department of Fair Trading superseded the Department of Consumer Affairs in 1995.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.