Australian Capital Territory Consolidated Acts

FAIR TRADING (CONSUMER AFFAIRS) ACT 1973 - SECT 16

    (1)     If, after a complaint or other matter involving a consumer is made or referred to the commissioner, the commissioner is satisfied that—

        (a)     a consumer has a cause of action or a good defence to an action; or

        (b)     it is otherwise in the public interest to do so;

he or she may, on behalf of the consumer and either alone or jointly, institute legal proceedings against any other person or defend proceedings brought against the consumer with a view to enforcing or protecting the rights of the consumer in relation to an infringement, or suspected infringement, by that other person of—

        (c)     those rights; or

        (d)     a provision of a law in force in the ACT relating to the interests of consumers.

    (2)     Notwithstanding subsection (1), the commissioner shall not institute or defend proceedings under this section unless he or she first obtains—

        (a)     the written consent of the consumer; and

        (b)     the written consent of the Minister.

    (3)     Nothing in subsection (2) requires the commissioner to get the consent of the consumer or the Minister in relation to the defence of a counterclaim, set-off or cross-action.

    (4)     A consent given under subsection (2) (a) is irrevocable except with the consent of the commissioner.

    (5)     A consent given under subsection (2) (b) is subject to the conditions the Minister thinks fit.

    (6)     Subject to subsection (2), the commissioner may, without consulting or seeking the consent of the consumer, conduct proceedings under this section in the name of the consumer and in the way the commissioner considers appropriate and proper.

    (7)     For the purpose of conducting proceedings under this section, the commissioner has in all respects the same rights as the consumer would have had in the conduct of the proceedings, including the right—

        (a)     to sign documents in connection with the proceedings on behalf of the consumer; and

        (b)     to settle an action or part of an action; and

        (c)     to give undertakings with regard to costs.

    (8)     Money (other than costs) recovered by the commissioner as a result of proceedings under this section shall be paid to the consumer without deduction.

    (9)     If an order for costs is made against the consumer—

        (a)     the costs shall be paid by the commissioner; and

        (b)     the order may be enforced against the commissioner as if he or she were the consumer; and

        (c)     the order shall not be enforced against the consumer.

    (10)     If an order for costs is made in favour of the consumer—

        (a)     the costs are payable to the commissioner; and

        (b)     the order may be enforced by the commissioner.

    (11)     In proceedings under this section, a court has the same powers as it would have had if the proceedings had been instituted by the consumer.

    (12)     The commissioner is not personally liable as a result of proceedings instituted or defended by him or her under this section but an amount that the commissioner becomes liable to pay under subsection (9) shall be paid by the Territory.