Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 27

Right to payment for unauthorised entries or advertisements

27. Right to payment for unauthorised entries or advertisements



(1) If the publisher of a publication contacts another person directly and
invites that person to place an entry or advertisement relating to that person
or the profession, business, trade or occupation of that person in the
publication, the publisher must not assert a right to payment for a charge for
the placing of the entry or advertisement unless the person has given to the
publisher-

   (a)  at the time of publication, a written instruction or authorisation for
        the placing of the entry or advertisement; or

   (b)  at any time before publication, a written instruction or authorisation
        signed by the person to the placing of entries or advertisements in
        the nature of the entry or advertisement.

Penalty: 240 penalty units, in the case of a natural person.
600 penalty units, in the case of a body corporate.

(2) If the publisher of a publication contacts another person directly and
invites that person to place an entry or advertisement relating to that person
or the profession, business, trade or occupation of that person in the
publication, that person-

   (a)  is not liable to make any payment to the publisher; and

   (b)  is entitled to recover against the publisher, in a court of competent
        jurisdiction, any payment made to the publisher in full or part
        satisfaction of a charge for the placing of the entry or advertisement
        in the publication-

if the person has not given to the publisher-

   (c)  at the time of publication, a written instruction or authorisation for
        the placing of the entry or advertisement; or

   (d)  at any time before publication, a written instruction or authorisation
        signed by the person for the placing of entries or advertisements in
        the nature of the entry or advertisement.

(3) For the purposes of this section a person is deemed not to have given
written instruction or authorisation for the placing of an entry or
advertisement unless-

   (a)  a document giving instructions for or authorising the placing of the
        entry or advertisement has been signed by the person or by another
        person authorised by that person; and

   (b)  a copy of the signed document has been given to the publisher before
        the right to payment for 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 entry or advertisement; and

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

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

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

(5) This section does not apply to a publication which is published by a
person-

   (a)  if the person is-

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

   (ii) the publisher of any publication which 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

   (iii) a servant of the Crown, a body corporate which represents the Crown
        or a Council (within the meaning of the Local Government Act 1989); or

   (iv) any other prescribed person; and

   (b)  if the person has not been found guilty of an offence under section
        24.

(6) 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; large proprietary company has the same meaning as in
the Corporations Act;

listed corporation has the same meaning as in the Corporations Act;



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subsidiary has the same meaning as in the Corporations Act.