South Australian Consolidated Acts South Australian Consolidated Acts72—Right to payment for unsolicited goods etc
(1) A person must not,
in trade or commerce, assert a right to payment from another person for
unsolicited goods unless the first mentioned person has reasonable cause to
believe that there is a right to payment.
(2) A person must not,
in trade or commerce, assert a right to payment from another person for
unsolicited services unless the first mentioned person has reasonable cause to
believe that there is a right to payment.
(3) A person must not
assert a right to payment from another person of a charge for the making in a
directory of an entry relating to the other person or to the other person's
profession, business, trade or occupation unless the first mentioned person
knows or has reasonable cause to believe that the other person has authorised
the making of the entry.
(4) 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 first mentioned person to the other person, in full or part
satisfaction of a charge for the making of an entry in a directory unless the
first mentioned person has authorised the making of the entry.
(5) For the purposes
of this section, a person will be taken to assert a right to a payment from
another person for unsolicited goods or services, or of a charge for the
making of an entry in a directory, if the first mentioned 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 the name of the other person on a list of
defaulters or debtors, 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 price of the goods or services or the charge for the making of
the entry and not stating as prominently (or more prominently) that no claim
is made to the payment, or to payment of the price or charge, as the case may
be.
(6) A person will not
be taken for the purposes of this section to have authorised the making of an
entry in a directory unless—
(a) a
document authorising the making of the entry has been signed by the person or
by another person authorised by that person; and
(b) a
copy of the document has been given to the person before the right to payment
of a charge for the making of the entry is asserted; and
(c) the
document specifies—
(i)
the name of the directory; and
(ii)
the name and address of the person publishing the
directory; and
(iii)
particulars of the entry; and
(iv)
the amount of the charge for the making of the entry or
the basis on which the charge is, or is to be, calculated.
(7) For the purposes
of this section, an invoice or other document purporting to have been sent by
or on behalf of a person will be taken to have been sent by that person,
unless the contrary is established.
(8) In a proceeding
against a person in respect of a contravention of this section—
(a) in
the case of a contravention constituted by asserting a right to payment from
another person for unsolicited goods or services—the burden lies on the
defendant of proving that the defendant had reasonable cause to believe that
there was a right to payment; or
(b) in
the case of a contravention constituted by asserting a right to payment from
another person of a charge for the making of an entry in a directory—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 making of
the entry.
(9) In this
section—
"directory" includes any publication of a similar nature to a directory but
does not include a newspaper published in good faith as a newspaper at regular
intervals or a publication published, or to be published, by or under the
authority of the Australian Telecommunications Commission;
"making", in relation to an entry in a directory, means including, or
arranging for the inclusion of, the entry.