Consequences of repeal of Fair Trading Act

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In yesterday's post I stated that the Fair Trading Act 1999 had been repealed effective 1 July 2012 and replaced with the Australian Consumer Law and Fair Trading Act 2012.  Many commercial disputes brought in VCAT were "consumer and trader" disputes within the meaning of s.107 of the FTA. Chapter 7 of the new Act preserves the "consumer and trader" dispute regime.  Note should be taken of s.3(2) which provides that unless the contrary intention appears the words and expressions used in the new Act have the same meaning as they have in the Australian Consumer Law. This means, for example, that in deciding whether a dispute is a "consumer and trader" dispute recourse will have to be had to the definition of "goods" and "services" in s.2 of the Australian Consumer Law.

Section 8 of the new Act provides that the "Australian Consumer Law text" applies as a law of Victoria.  The expression "Australian Consumer Law Text" is defined in s.7 as meaning, among other things, schedule 2 to the Competition and Consumer Act 2010 (Cmlth), being the Australian Consumer Law. Thus, when considering, for example, a potential claim for misleading or deceptive conduct recourse must be had to s.18 of the the Australian Consumer Law and not to any provision in the new Act.  VCAT has jurisdiction to hear and determine disputes under the Australian Consumer Law and thus the full suite of remedies available under the Australian Consumer Law can be utilized in VCAT. See: s.224 of the ACLFTA.

Readers should also note that the Landlord and Tenant Act 1958 will be, but has not yet been, repealed by the ACLFTA with the consequence that the law concerning uncollected goods left in premises at the termination of a lease remains in Part IVA of the Landlord and Tenant Act. When Part IVA  is repealed Part 4.2 of the ACLFTA will be the statutory source of the law in Victoria concerning uncollected goods.

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Author: Robert Hays Barrister subject to copyright under DMCA.