Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are to amend the Consumer Claims Act 1998 (the Principal
Act) as follows:

(a) to specify the objects of the Principal Act,

(b) to clarify that the Consumer, Trader and Tenancy Tribunal (the Tribunal) may
hear and determine a consumer claim, arising from or in connection with the
supply of goods or services to the consumer, against a supplier who is not the
direct supplier of the goods or services,

(c) to make it clear that the Tribunal may hear and determine consumer claims
only where:

        (i) the applicable goods or services were supplied in New South Wales, or
        (ii) a contract or other agreement to which the claim relates contemplated
that the goods or services would be supplied in New South Wales, or
        (iii) a contract or other agreement to which the claim relates was made in
New South Wales,

(d) to extend the limitation period applying to the lodging of consumer claims
with the Tribunal,

(e) to expand the range of orders that the Tribunal may make in determining a
consumer claim,

(f) to ensure that the Tribunal cannot determine a claim, and may only adjourn or
dismiss the proceedings, where the claimant fails to present his or her case but
does not formally withdraw the claim,

(g) to make other amendments of a savings and transitional nature consequent on
the enactment of the proposed Act.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Consumer
Claims Act 1998 set out in Schedule 1.

Clause 4 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced, the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendments
Objects of Act
Schedule 1 [1] inserts proposed section 2A, which specifies the objects of the
Principal Act, namely:

(a) to provide remedies to consumers concerning the supply of goods and
services, and

(b) to simplify and improve dispute resolution for parties involved in consumer
disputes.

Consumer claims
Section 6 of the Principal Act enables a consumer to apply to the Tribunal for the
determination of a consumer claim. Consumer claim is defined in the Principal Act
to include a claim arising from a supply of goods or services by a supplier to the
consumer, whether under a contract or not. This definition is recreated in the new
section 3A of the Principal Act (as inserted by Schedule 1 [3]). The new section 3A
also clarifies that a consumer claim extends to a claim by a consumer against a
supplier (such as a manufacturer or distributor) who is not the direct supplier of the
goods or services to the consumer concerned.

Schedule 1 [2] contains an amendment to the Principal Act that is consequential on
the amendment made by Schedule 1 [3].

Jurisdiction in respect of consumer claims
Schedule 1 [5] amends section 7 of the Principal Act.

The new section 7 (2) limits the jurisdiction of the Tribunal to claims where the
applicable supply of goods or services occurred in New South Wales, a contract or
other agreement to which the claim relates contemplated that the goods or services
would be supplied in New South Wales or a contract or other agreement to which the
claim relates was made in New South Wales. The new subsection is in line with the
decision of the Supreme Court of New South Wales in Oubani v MCI Technologies
P/L & Anor [2004] NSWSC 733. That decision confirmed that the Tribunal has
jurisdiction to determine a claim involving the supply of goods regardless of where
any applicable contract for the supply of goods is made if the supply occurs in New
South Wales.

The new section 7 (3) provides that the Tribunal has that jurisdiction whether or not
any applicable agreement confers jurisdiction on any other court or tribunal, or
whether or not the rules of private international law require a law other than the law
of New South Wales to be applied to the hearing or determination of the claim.

The new section 7 (4) deals with the period within which a claim must be lodged for
the Tribunal to be able to hear and determine the claim. Generally, under existing
provisions, a claim must be lodged with the Tribunal within 3 years of the date of
supply of the applicable goods or services. Under the new section 7 (4), the Tribunal
may not hear and determine a claim that is lodged with the Tribunal more than:

(a) 3 years after the date on which the cause of action giving rise to the claim first
accrued, or

(b) 10 years after the date of supply.

The new section 7 (4A) clarifies that the new section 7 (4) does not affect any period
of limitation provided for in the Limitation Act 1969.

Schedule 1 [4] and [6] make amendments to section 7 of the Principal Act that are
consequential on the amendments made by Schedule 1 [5].

Powers of Tribunal
Schedule 1 [7] and [8] amend section 8 of the Principal Act to expand the range of
orders that the Tribunal may make in determining a consumer claim. Schedule 1 [7]
amends section 8 (1) of the Principal Act to enable the Tribunal to order a respondent
to refund the purchase price of goods possessed or controlled by the claimant in
exchange for the claimant returning those goods.

Currently, a number of orders available to the Tribunal are limited to requiring
respondents to provide something (for example, money) to claimants or vice versa.

Schedule 1 [8] inserts proposed section 8 (2A) to enable similar orders to be made
requiring one respondent to provide something to another respondent following a
cross-claim.

Schedule 1 [9] amends section 8 of the Principal Act to ensure that the Tribunal
cannot determine a claim, and may only adjourn or dismiss the proceedings, where
the claimant fails to present his or her case but does not formally withdraw the claim.

Schedule 1 [10]–[12] contain amendments that are consequential on the amendments
made by Schedule 1 [8]. In particular, Schedule 1 [11] inserts a new section 14 (2A)
to ensure that the limit of $30,000 that may be ordered in favour of claimants or
respondents under the Act applies also to orders made under proposed section 8 (2A).

Savings and transitional provisions
Schedule 1 [13] amends clause 1 of Schedule 1 to the Principal Act to enable savings
and transitional regulations to be made as a consequence of the enactment of the
proposed Act.

Schedule 1 [14] contains an amendment to the Principal Act that is consequential on
the amendment made by Schedule 1 [13].

Schedule 1 [15] inserts a new Part 3 in Schedule 1 to the Principal Act containing
savings and transitional provisions consequent on the enactment of the proposed Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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