Consumer complaint ACT ACAT: escalating under the ACL

You bought something, or paid for a service, in the ACT, and the business won't fix the problem. The Australian Consumer Law (ACL) still gives you rights. This guide covers the ACT path: a written demand, a complaint to Access Canberra (which can conciliate some disputes), and a binding decision from the ACT Civil and Administrative Tribunal (ACAT) or a court.

Quick answer

What failed, and whether it can be put right, decides what you can ask for. Where the ACL applies and the failure is major or cannot be remedied, the choice of remedy is yours: for goods, reject them (where your right to reject is still available) and choose a refund or a replacement, or keep them and claim the drop in value; for services, cancel the contract and recover what you paid for services not already consumed, or keep it and claim the drop in value. Where the failure is non-major and can be remedied, you can require the business to fix it within a reasonable time, and for goods it chooses how; if it refuses or doesn't, you can have it fixed elsewhere and recover the reasonable cost, or reject the goods or cancel the contract. You may also claim other reasonably foreseeable losses you can evidence and took reasonable steps to limit. In the ACT, write to the business first. Access Canberra can then help if you live in the ACT, and for a remedy worth $5,000 or less it can conciliate if you agree. A binding decision usually comes from ACAT for claims up to $25,000, the Magistrates Court above that, or the Supreme Court above $250,000; confirm the forum and time limit before you file.

What the law actually says

The ACL applies in the ACT as the Australian Consumer Law (ACT), under the Fair Trading (Australian Consumer Law) Act 1992 (ACT). It covers people carrying on business in the ACT or otherwise connected with it, including for conduct outside the ACT, which matters if you bought online from an interstate seller.

The consumer guarantees apply automatically where you acquire goods or services as a consumer under section 3: broadly, where they cost $100,000 or less (for purchases from 1 July 2021; $40,000 before then), are of a kind ordinarily acquired for personal, domestic or household use or consumption, or (for goods) are a vehicle or trailer mainly for carrying goods on public roads. Any one is enough. Goods acquired to re-supply, or to use up or transform, in trade or commerce, in production, manufacture or repair, are excluded; there's no equivalent exclusion for services. Under section 64 of the ACL, a term that tries to exclude, restrict or modify the guarantees or your remedies, or has that effect, is void to that extent, and a "no refunds" sign or an "all sales final" clause can't remove them. For goods or services not of a kind ordinarily bought for personal, domestic or household use, section 64A may let a term limit liability to repairing or replacing goods (or the cost) or supplying services again (or the cost), except for the title guarantees, unless you show relying on it isn't fair or reasonable.

The guarantees most relevant to ACT escalation disputes:

• Section 54 — Acceptable quality. Goods must be fit for all the purposes goods of that kind are commonly supplied for, acceptable in appearance and finish, free from defects, safe and durable, as a reasonable consumer fully acquainted with their state and condition would regard as acceptable, given their nature, price, statements about them and other circumstances. A warranty period doesn't set the limit.
• Section 55 — Fitness for disclosed purpose. If you made known a particular purpose to the seller (or whoever handled the sale, or the manufacturer), or the seller said the goods were fit for it, they must be reasonably fit for it, unless you didn't rely, or it was unreasonable to rely, on their skill or judgment.
• Section 56 — Match the description. Goods must correspond with any description applied to them.
• Section 60 — Services with due care and skill. Services must be rendered with due care and skill.

When a guarantee is breached, your remedies depend on whether the failure is major or non-major. For goods, section 260 of the ACL makes a failure major if any one of these applies:

• a reasonable consumer, fully acquainted with the nature and extent of the failure, would not have acquired the goods;
• the goods depart in one or more significant respects from their description, or from a sample or demonstration model;
• the goods are substantially unfit for a purpose goods of the same kind are commonly supplied for, and cannot easily and within a reasonable time be remedied to make them fit;
• the goods are unfit for a particular purpose you disclosed to the seller (or whoever handled the sale), and cannot easily and within a reasonable time be remedied to make them fit; or
• the goods are not of acceptable quality because they are unsafe.

For contracts from 18 December 2020, two or more failures that aren't major on their own can together be major if a reasonable consumer aware of them all wouldn't have acquired the goods or services (sections 260(2) and 268(2)). Section 268 sets separate tests for services: a reasonable consumer, fully acquainted with the nature and extent of the failure, would not have acquired them; they are substantially unfit for their common purpose, unfit for a purpose you made known, or not reasonably expected to achieve a result you made known, and in each case can't easily and within a reasonable time be remedied; or their supply creates an unsafe situation.

For goods, where the failure is major or cannot be remedied, section 259(3) lets you reject the goods (subject to section 262, below) and then, under section 263(4), take a refund or a replacement of the same type and similar value if one is reasonably available; or keep them and claim the reduction in value. A refund is your money back, not store credit. Where the failure is non-major and can be remedied, you require a remedy under section 259(2) and the seller chooses how under section 261; if it refuses or doesn't comply within a reasonable time, you can have it fixed elsewhere and recover the reasonable cost, or reject the goods. Services follow section 267: for a fixable, non-major failure, require the supplier to fix it within a reasonable time, and if it doesn't, have it fixed elsewhere and recover the reasonable cost, or cancel the contract; for a major failure or one that can't be remedied, cancel, with section 269 refunding what you paid for services not yet consumed, or keep the contract and claim the drop in value. Damages for other loss the failure caused are also available where it was reasonably foreseeable and you can evidence it (sections 259(4) and 267(4)); avoidable loss is harder to recover, and you can't recover the same loss twice.

The remedies above run against the supplier. For some guarantees, including acceptable quality and the manufacturer's own express warranty, sections 271 and 272 add a separate damages claim against the manufacturer, which section 273 requires you to start within three years after you first became aware, or ought reasonably to have become aware, of the failure. A manufacturer that sold to you directly is also the supplier.

When this applies (and when it doesn't)

The ACL consumer guarantees apply in the ACT when:

• You bought from a business, or a person acting in trade or commerce: most sole traders, such as personal trainers and tradespeople, qualify even as individuals.
• You acquired the goods or services as a consumer under section 3 (above).

They generally do not apply when:

• You changed your mind. No ACL right covers that, though a store may offer returns as a policy.
• You caused the problem, or failed to take reasonable steps to prevent it, and the goods were damaged by abnormal use.
• A specific fault was drawn to your attention before you bought, or your own inspection ought reasonably to have revealed it. That fault can't support an acceptable quality claim, but others still can.
• You bought at a traditional auction run by the seller's agent, in person or online (eBay generally isn't one). Only the title, undisturbed-possession and no-hidden-debts guarantees apply, though misleading-conduct law still does.
• The seller is a private individual not acting in trade or commerce, such as a one-off Facebook Marketplace sale. Most guarantees then don't apply, though the ACCC notes the title, undisturbed-possession and no-hidden-debts guarantees do; the section 259 remedies still need a seller in trade or commerce, so any claim may rest on contract or other law.
• The purchase is a financial product such as insurance, which the ACCC says other laws cover instead of the consumer guarantees.

When an overseas business sells directly to consumers in Australia, the ACCC says it must follow the ACL, though getting a remedy across borders can be difficult; see buying from overseas sellers.

The ACL does not set a single fixed warranty-style expiry period for consumer guarantee claims, but the right to reject goods has its own limit. Under section 262(2), the rejection period runs from when the goods were supplied, for as long as it would be reasonable to expect the failure to become apparent, having regard to the type of goods, their likely use, and how long and how much it is reasonable to use them. It is not measured from when you found the fault, and a hidden fault in goods expected to last years can still fall within it long after supply. Rejection is also lost if you lost, destroyed or disposed of the goods, they were damaged after delivery for reasons not related to their condition when supplied, or they're attached to or incorporated in other property and can't be detached or isolated without damaging them. Once rejection is gone, the claim for the drop in value, and damages, can remain.

What to do today

1. Gather your proof of purchase. A receipt, email confirmation, bank or card statement or loyalty record may be enough, if it identifies the business and the transaction. Note the business's legal name, ABN (or ACN for a company) and address, which you'll need if you file a claim.
2. Document the failure. Photos, videos, the date you first noticed the problem, your communications with the business, and what went wrong. Keep repair quotes and receipts for any extra costs the failure caused.
3. Write to the business. Use email, so there's a record: Access Canberra needs proof you wrote to the business before it can help. State the date of purchase, describe the failure, identify the consumer guarantee you say has been breached, and state the remedy you want; if you're rejecting goods, say so and why. List any other losses you're claiming. Set a reasonable response deadline (14 days is a practical choice, not a legal rule).
4. Get an independent opinion if the fault is disputed. A written report from a qualified repairer on the defect, its likely cause, how easily and quickly it can be fixed and at what cost carries more weight than your own description, because it comes from someone with no stake in the outcome.
5. Check your payment method early. If you paid by card, ask your card issuer whether a chargeback is available; if you used buy now pay later, ask the provider about its dispute process; both follow the card scheme's or provider's own time limits, not the ACL's.
6. Keep the goods. Disposing of them can cost you the right to reject. If you reject goods, you usually must return them, but if that would cost you significantly because of the fault or their size, height or method of attachment, the business must collect them within a reasonable time at its own expense (section 263).

If you are not sure how to write the demand letter, fairgo can generate one for you. You send it under your own name.

What if the business refuses

Access Canberra — complaints and conciliation

Access Canberra is the regulator responsible for enforcing the Australian Consumer Law (ACT). You can complain online if you live in the ACT, wherever the business is in Australia (non-residents only about ACT agents, motor vehicle dealers or repairers), after writing to the business. This step is optional. It can give advice and help resolve the dispute, and says it gives an initial response within 10 business days. It can't give legal advice or compensate you; only a court or tribunal can order a business to compensate you or fix the problem.

For a complaint where the remedy you seek is worth $5,000 or less, the Commissioner for Fair Trading can conciliate if the matter is suitable and you agree, and can issue a notice requiring the business to attend; a business that doesn't attend without a reasonable excuse commits an offence. You and the business decide the outcome, and conciliation isn't used once the matter is before ACAT. A signed agreement can be turned into an ACAT order, and ACAT charges no application fee for that. Above $5,000, Access Canberra may still help informally, but the statutory conciliation doesn't apply.

Access Canberra also investigates and enforces the law, but that usually doesn't resolve your dispute; rarely, with your and the Attorney-General's consent, it can sue for you.

Binding forums — ACAT and the courts

If the dispute isn't resolved, a binding decision has to come from a tribunal or court, and in the ACT the amount usually decides which:

• Up to $25,000: ACAT. An ACL claim is a civil dispute application at ACAT, which can hear claims up to $25,000 (not counting interest) and make the orders the Magistrates Court could. A bigger claim stays at ACAT only if you give up the excess over $25,000 or the other side agrees in writing. A claim of $25,000 or less can't be started in the Magistrates Court. ACAT needs an ACT connection, such as the business being an ACT resident when served, or a material part of the claim happening here.
• Over $25,000: the Magistrates Court, generally up to $250,000.
• Above that: the Supreme Court.

ACAT can hear only what legislation gives it, so check current limits, fees and costs on the ACAT and courts sites.

ACAT tells applicants to try to resolve the dispute first. Its filing fee depends on the amount claimed and whether you are an individual or a company; concession cardholders may be exempt, and fees can be waived or deferred for hardship. Each side usually pays its own costs, but if you win, ACAT can order the other side to repay your filing fee and other necessary fees. You don't have to be represented, though you can bring a lawyer. Civil disputes are first listed for a directions hearing you must attend, or ACAT may make final orders without you; a disputed claim may then go to a conference and a hearing. If the business doesn't comply with an order, you can enforce it through the Magistrates Court, which charges enforcement fees.

If you live in a state (in Queanbeyan, say) and the business is an individual in another state, federal-jurisdiction limits may mean a court, not ACAT, must decide the claim; this doesn't arise if either of you lives in the ACT or the business is a company.

Time limits. ACAT sets no deadline for civil disputes, but limitation periods can apply. The ACL sets no specific deadline for consumer guarantee claims against the seller; the Limitation Act 1985 (ACT) generally allows six years from when the cause of action accrued, and a claim against a manufacturer must start within three years (section 273). A case can lapse if nobody takes a step for six months. Don't assume conciliation stops the clock, and get advice well before any deadline.

Common mistakes

• Confusing the manufacturer's warranty with the consumer guarantee. A warranty is a separate promise; the guarantees are statutory rights against the seller that can outlast it, so "your warranty has expired" doesn't end the matter. See consumer guarantees vs warranty.
• Claiming only the price, or more than you can prove. Your main remedy follows the failure: a refund, replacement, repair cost or the drop in value. Damages for other reasonably foreseeable loss, such as food spoiled by a failed fridge, come on top (sections 259(4) and 267(4)). Claim what you can evidence and took reasonable steps to limit.
• Going straight to the ACCC. The ACCC doesn't resolve individual disputes; it points consumers to Access Canberra and ACAT, though you can still report a business to it.
• Waiting too long. The right to reject runs from supply, the time limits above can bar a late claim, and delay makes it harder to show the fault wasn't caused by later use.

Related reading

• NCAT, VCAT, QCAT — which tribunal handles your consumer claim?
• Escalating an ACL complaint in NSW
• Business refused your refund? Here's what to do next
• What "major failure" really means under the ACL

This article is general information about Australian Consumer Law, not legal advice. It also describes Access Canberra, the ACCC, ACAT, ACT courts, limitation periods, card and buy now pay later disputes, store policies, contract law, financial products and overseas purchases, whose rules, fees, deadlines and thresholds sit outside the ACL or can change. Confirm the current position with the relevant body before lodging. For advice on your case, see Access Canberra or another consumer body — full list at /agencies.