Division 5—Miscellaneous 21 21 Conferral of functions and powers on certain bodies 21 22 No doubling-up of liabilities 22 23–32 Repealed 12 23 Division 1—Interpretation 23 32A Definitions 23 32B–32C Repealed 24 Division 2—Application of Part 24 32CA–32F Repealed 24 32FA Application of Goods Act 1958 to contracts of supply 24 Division 3—Supply of goods or services 25 32G–32MA Repealed 25 32N Limitation of liability in relation to supply of recreational services 25 32NA Exemption from waiver form requirement 29 32NB–32O Repealed 30 32OA Rescission for innocent misrepresentation 30 32P Discharge or rescission of contract of supply of goods 31 32PA When does a discharge or rescission have effect? 32 32Q Liability of supplier and person conducting antecedent negotiations 33 32QA Indemnity for supplier or dealer 35 32R Certain contracts or provisions void 35 32RA Penalty for including void provision relating to antecedent negotiations 36 Division 4—General 36 32S Repealed 36 32SA Limit of liability of guarantors 36 32T Limit of liability under security 39 32TA Contract of supply not illegal etc. 39 40 32U–32ZDA Repealed 40
In this Division, participating jurisdiction or other jurisdiction does not include the Commonwealth. S. 17 substituted by No. 72/2010 s. 9. 17 Application law of this jurisdiction The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned. S. 18 substituted by No. 72/2010 s. 9. 18 Application law of other jurisdictions s. 18 (1) The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction. (2) If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege. S. 19 substituted by No. 72/2010 s. 9. 19 Activities that are not business (1) For the purposes of sections 17 and 18, the following do not amount to carrying on a business— (a) imposing or collecting— (i) taxes; or (ii) levies; or (iii) fees for authorisations; (b) granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions);
Pt 2A (Heading and ss 32A–32TA) inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)–(5), 25). Division 1—Interpretation S. 32A inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)–(5), 25). 32A Definitions s. 32A In this Part— contract of supply includes an agreement to supply; court in relation to any legal proceeding, includes the Tribunal and a person acting judicially; dealer means a person by whom or on whose behalf any antecedent negotiations are conducted but does not include the supplier or an agent of the supplier acting with the authority of the supplier; discharge in relation to a contract of supply of goods or services, means discharge of the contract so far as it is executory; innocent misrepresentation in relation to a contract of supply of goods or services means misrepresentation that is not fraudulent; lease includes hire; rescission in relation to a contract of supply of goods or services means avoidance of the contract as from its beginning.
Ss 32B–32C inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)–(5), 25), repealed by No. 72/2010 s. 10. * * * * * Division 2—Application of Part Ss 32CA–32F inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)–(5), 25), repealed by No. 72/2010 s. 10. * * * * * S. 32FA inserted by No. 30/2003 s. 11 (as amended by No. 106/2003 ss 24(2)–(5), 25), substituted by No. 72/2010 s. 11. 32FA Application of Goods Act 1958 to contracts of supply s. 32FA (1) Sections 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) applies. (2) Section 4(2) of the Goods Act 1958 is taken to apply in relation to this Part and Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) as if— (a) the reference to Part were a reference to Part 3-2 of the Australian Consumer Law (Victoria); and (b) the reference to contracts for the sale of goods included a reference to contracts of supply of goods.
S. 105 amended by No. 30/2003 s. 43, substituted by No. 103/2004 s. 10. 105 Powers of the Director in relation to proceedings on behalf of consumers s. 105 (1) The Director may, subject to this section, institute or continue proceedings on behalf of, or defend proceedings brought against, a person or persons in respect of a consumer dispute. (2) The Director must not, under subsection (1), institute or continue or defend proceedings unless the Director is satisfied— (a) that the person or persons have a good cause of action or a good defence to an action relating to the consumer dispute; and (b) that the person or persons are not bringing proceedings against a natural person who is acquiring goods or services of a kind ordinarily used for personal, household or domestic purposes; and (c) that it is in the public interest to institute, continue or defend proceedings on behalf of the person or persons. (3) The Director must not, under subsection (1), institute, continue or defend proceedings on behalf of a person or persons unless— (a) the person has or the persons have given consent in writing; or (b) in the case of group proceedings or representative proceedings, the representative party has given consent. s. 105 (4) After consent has been given under subsection (3), the Director may institute or continue a proceeding or defence on behalf of a person or
persons even if the person or any of the persons revokes the consent. (5) In this section— S. 105(5) def. of consumer dispute amended by No. 11/2010 s. 45. consumer dispute means a dispute between a purchaser or purchasers or a possible purchaser or purchasers and a supplier about a supply or supplies or possible supply or supplies of goods or services in trade or commerce, other than a dispute under or in relation to the National Consumer Credit Protection Act 2009 of the Commonwealth; proceeding includes group proceeding and representative proceeding. Note to s. 105 inserted by No. 72/2010 s. 21. Note This section is not intended to displace or limit the procedures for applications under section 149 or 277 of the Australian Consumer Law (Victoria). 106 Proceedings and costs s. 106 S. 106(1) amended by No. 103/2004 s. 11(1)(a). (1) If the Director institutes, continues or defends proceedings on behalf of a person under section 105— (a) the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and (b) if a judgment is obtained in the proceedings in favour of the person, the Director may take such steps as are necessary to enforce the judgment; and S. 106(1)(c) amended by Nos 30/2003 s. 44(1)(a), 103/2004 s. 11(1)(b). (c) subject to subsections (1A) and (1B), an amount (other than an amount in respect of costs) recovered by the Director in respect of the person in the proceedings is payable to the person; and
S. 106K inserted by No. 30/2003 s. 45. 106K Copies of seized documents s. 106K (1) If the Director retains possession of a document seized from a person under this Division, the Director must give the person, within 21 days of the seizure, a copy of the document certified as correct by the Director. (2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals to be evidence of equal validity to the original. S. 106L inserted by No. 30/2003 s. 45. 106L Retention and return of seized documents (1) If the Director seizes a document under this Division, the Director must take reasonable steps to return the document to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document seized has not been returned within 3 months after it was seized, the Director must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) the Magistrates' Court makes an order under section 106M extending the period during which the document may be retained. S. 106M inserted by No. 30/2003 s. 45. 106M Magistrates' Court may extend 3 month period s. 106M (1) The Director may apply to the Magistrates' Court— (a) within 3 months after seizing a document under this Division; or (b) if an extension has been granted under this section, before the end of the period of the extension—
provided in subsection (3)) does not include a dispute or claim related to a personal injury. S. 107(3) inserted by No. 30/2003 s. 47(3). (3) For the purposes of subsection (1), a dispute or claim includes a claim related to personal injury if— (a) the claim is for an amount not exceeding $10 000; and (b) the claim relates to a supply or possible supply of goods or services; and (c) the supply or possible supply of goods or services is the subject of a related consumer and trader dispute. S. 107A inserted by No. 30/2003 s. 48. 107A What is a small claim? In this Part small claim means a consumer and trader dispute in relation to— (a) a claim for payment of money in an amount not exceeding $10 000 or other prescribed amount; or (b) a claim for performance of work of a value not exceeding $10 000 or other prescribed amount— that in either case arises out of a contract for the supply of goods or the provision of services other than a contract of life insurance. S. 108 (Heading) inserted by No. 30/2003 s. 49(1). 108 Settlement of consumer and trader disputes or small claims s. 108 S. 108(1) amended by No. 30/2003 s. 46. (1) The Tribunal may hear and determine a consumer and trader dispute. S. 108(2) amended by No. 30/2003 s. 46. (2) The Tribunal may do one or more of the following in relation to a consumer and trader dispute—
(g) may be, or has been, subject to disciplinary action. S. 113A inserted by No. 30/2003 s. 52. 113A Tribunal may order the provision of information s. 113A (1) A person may apply to the Tribunal for an order requiring the Director to provide the full name and address of a supplier, who is not registered or licensed or whose details are not contained on any public register established under a business licensing Act or other Act. (2) The Tribunal may make the order referred to in subsection (1) if it is satisfied that, in all the circumstances, it is just and convenient to do so. _______________ S. 114 substituted by No. 103/2004 s. 13. 114 Appointment of inspectors s. 114 (1) The Director may, by instrument, appoint as an inspector— S. 114(1)(a) amended by No. 108/2004 s. 117(1) (Sch. 3 item 74.2). (a) any employee under Part 3 of the Public Administration Act 2004; (b) any person who is appointed as an inspector, enforcement officer or authorised officer by or under any other Act; (c) any person who is appointed or authorised as an inspector, investigator, authorised officer or authorised person under an interstate Act. (2) An inspector appointed under subsection (1)(a) or (1)(b) may also be appointed or authorised under an interstate Act as an inspector, investigator, authorised officer or authorised person under that Act.
A search warrant under section 122 authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if— (a) the inspector believes, on reasonable grounds, that the thing— (i) is of a kind which could have been included in a search warrant issued under this Part; or S. 125(a)(ii) amended by No. 35/2000 s. 40(3). (ii) will afford evidence about the contravention of any Consumer Act; and S. 125(b) amended by No. 35/2000 s. 40(3). (b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act. 126 Embargo notice s. 126 (1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form— (a) by causing a copy of the notice to be served on the occupier; or (b) if that person cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. S. 126(2) amended by No. 17/2007 s. 7. (2) A person who knows that an embargo notice relates to a thing and who— (a) sells; or
S. 126B(4)(b) amended by No. 72/2010 s. 28(a)(i). (b) a safety standard; S. 126B(4)(c) amended by No. 72/2010 s. 28(a)(ii). (c) an interim ban; S. 126B(4)(d) amended by No. 72/2010 s. 28(a)(iii). (d) a permanent ban— s. 126B S. 126B(4)(e) repealed by No. 72/2010 s. 28(a)(iv). * * * * * the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989. (5) The warrant may authorise the inspector, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment, to enter the premises specified in the warrant, if necessary by force, and— (a) to search for, seize and secure against interference the thing named in the warrant; or S. 126B(5)(b) amended by No. 72/2010 s. 28(b)(i). (b) to test the thing named in the warrant to determine whether it complies with a safety standard; or (c) to test the thing named in the warrant to determine whether any of the following is being complied with— S. 126B(5)(c)(i) amended by No. 72/2010 s. 28(b)(ii). (i) an interim ban;
(a) a contravention of any provision of this Act; or (b) attempting or conspiring to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or (e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision. (2) The Supreme Court may grant the injunction sought— (a) if— (i) the Court is satisfied that the person is engaging in or has been engaging in conduct of that kind; and (ii) it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind and there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or (b) if the Court determines it to be appropriate, by consent of all the parties to the proceedings, whether or not the person has engaged in, or is likely to engage in conduct of that kind. (3) An injunction under this section may be granted—
S. 155(2)(b) amended by No. 68/2009 s. 97(Sch. item 56.7). (b) in the case of an accused being a body corporate, an officer or an agent of the accused— at the time when the contravention occurred. S. 155(3) amended by No. 68/2009 s. 97(Sch. item 56.8). (3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the accused is not, without leave of the court, entitled to rely on that defence unless the accused has, not later than 14 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted, a notice in writing giving such information that would identify or assist in the identification of the other person as was then in the possession of the accused. S. 155(4) amended by Nos 103/2004 s. 25(2)(a), 68/2009 s. 97(Sch. item 56.9), 72/2010 s. 35(a). (4) In a proceeding under this Act in relation to a contravention of a prescribed provision committed by the publication of an advertisement, it is a defence if the accused establishes that— S. 155(4)(a) amended by No. 68/2009 s. 97(Sch. item 56.9). (a) the accused is a person whose business is to publish or arrange for the publication of advertisements; and S. 155(4)(b) amended by Nos 103/2004 s. 25(2)(b), 68/2009 s. 97(Sch. item 56.9). (b) that the accused received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a prescribed provision.