New South Wales Consolidated Acts

FAIR TRADING ACT 1987 - SECT 58A

58A Assertion of right to payment for unauthorised advertisements

(1) A person must not, in trade or commerce, assert a right to payment from another person for an advertisement relating to the other person, or the profession, business, trade or occupation of the other person placed in a publication, unless the person asserting the right knows, or has reasonable cause to believe, that the other person has authorised in writing the placement of the advertisement.

(2) A person is not liable to make any payment to another person, and is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person, in full or part satisfaction of a charge for the placement of any such advertisement unless the first-mentioned person has authorised in writing the placement of the advertisement.

(3) For the purposes of this section, a person is taken to assert a right to a payment if that person:

(a) makes a demand for the payment or asserts a present or prospective right to the payment, or

(b) threatens to bring any legal proceedings with a view to obtaining the payment, or

(c) places or causes to be placed on a list of debtors or defaulters the name of the person against whom the right to payment is being asserted, or threatens to do so, with a view to obtaining the payment, or

(d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment, or

(e) sends any invoice or other document stating the amount of the payment or setting out the charge for the placing of the advertisement, and the invoice or document does not contain a warning statement complying with subsection (4).

(4) For the purposes of subsection (3) (e), a warning statement must:

(a) be printed in upper case and a type not smaller than 18 point and be located at the top of the first page of the invoice or document, and

(b) state “THIS IS NOT A BILL. YOU ARE NOT REQUIRED TO PAY ANY MONEY.”.

(5) For the purposes of this section, a person is taken to have given written authorisation for the placement of an advertisement only if:

(a) a document authorising the placing of the advertisement has been signed by the person or by another person (not being the publisher) authorised by that person, and

(b) a copy of the signed document has been given to the person before the right to payment of a charge is asserted, and

(c) the document specifies:

(i) the name of the publication, the area of circulation of the publication and the total number of copies of the publication to be circulated, and

(ii) the name and business address of the publisher, and

(iii) the name and address of the person on whose behalf the publication is published, and

(iv) particulars of the advertisement, and

(v) the date or dates on which the advertisement is to appear in the publication, and

(vi) the amount of the charge for the placement of the advertisement or the basis on which the charge is, or is to be, calculated.

(6) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by the person unless the contrary is established.

(7) This section does not apply to a publication that is published by a person if the person is:

(a) a large proprietary company or a subsidiary of such a company or a listed corporation or a subsidiary of such a corporation, or

(b) the publisher of any publication that has an audited circulation of 10,000 copies or more per week, or a person which is a related body corporate to such a person, or

(c) a servant of the Crown, a body corporate which represents the Crown or a local council, or

(d) any other person prescribed by the regulations.

(8) In a proceeding against a person in respect of a contravention of this section, the burden lies on the defendant of proving that the defendant knew or had reasonable cause to believe that the other person had authorised the placement of the advertisement.

(9) In this section:
"audited circulation" in relation to a publication, means the circulation of that publication as confirmed by the most recent audit of the publication by a body approved by the Director-General.
"large proprietary company" has the same meaning as in the Corporations Act 2001 of the Commonwealth.
"listed corporation" has the same meaning as in the Corporations Act 2001 of the Commonwealth.
"subsidiary" has the same meaning as in the Corporations Act 2001 of the Commonwealth.

(10) This section does not apply in relation to the making of an entry in a directory.