South Australian Numbered Acts

STATUTES AMENDMENT AND REPEAL (FAIR TRADING) ACT 2009 (NO 39 OF 2009) - SECT 13

13—Insertion of section 8A

After section 8 insert:

8A—Conciliation

        (1)         The Commissioner must not attempt to resolve a dispute between a consumer and trader by conciliation except—

            (a)         at the request or with the consent of the consumer; or

            (b)         at the request of a court, board or tribunal in which proceedings have been taken in relation to the dispute.

        (2)         The Commissioner may call voluntary or compulsory conferences of the parties to the dispute for the purpose of attempting to resolve the dispute by agreement.

        (3)         If—

            (a)         the Commissioner is requested to resolve a dispute between a consumer and trader by conciliation; and

            (b)         the consumer, without reasonable excuse, fails to attend a conference called for that purpose when asked to do so by the Commissioner,

the Commissioner may refuse to take any further action in relation to the dispute.

        (4)         A trader who is asked by the Commissioner to attend a conference under this section must attend the conference if the Commissioner indicates in the request that attendance is compulsory.

Maximum penalty:

            (a)         in the case of a minor offence—$5 000;

            (b)         in any other case—$10 000.

Expiation fee: In the case of a minor offence—$315.

        (5)         A conciliation conference may be conducted by telephone or other electronic means (and a person who participates in a conference by such means will, for the purposes of this section, be taken to have attended the conference).

        (6)         The following provisions govern representation in conciliation proceedings:

            (a)         representation of a party by a lawyer will not be permitted unless—

                  (i)         another party to the dispute is a lawyer; or

                  (ii)         each of the parties to the dispute agrees; or

                  (iii)         the Commissioner is of the opinion that the party would be unfairly disadvantaged if not represented by a lawyer;

            (b)         if a party to the dispute is a body corporate, the Commissioner must, if the party seeks to be represented by an officer or employee who is not a lawyer, permit such representation;

            (c)         the Commissioner may permit a party to the dispute to be assisted by a person who is not a lawyer but only if that person is not acting for fee or reward.

        (7)         If an agreement that is reached as a result of conciliation is recorded in a written instrument and signed by the Commissioner and the parties to the agreement—

            (a)         a copy of the instrument must be given to each party; and

            (b)         in the event that a party to the agreement fails to carry out the party's obligations under the agreement—the Commissioner or the other party may apply to the Magistrates Court for an order enforcing the terms of the agreement.

        (8)         Evidence of anything said or done in the course of conciliation proceedings under this section is only admissible in subsequent proceedings by consent of the Commissioner and all parties to the proceedings.

        (9)         An application to the Magistrates Court under subsection (7)(b) is a minor statutory proceeding for the purposes of the Magistrates Court Act 1991 .

        (10)         In this section—

"minor offence" means an offence where the value of the goods or services the subject of the dispute is not more than $1 000 or, if some other amount is prescribed by the regulations, that amount.