Consumer complaint in South Australia: CBS and the next legal step

If the business has said no, often quoting store policy as if it were law, here is what happens next in South Australia.

Quick answer

How far you can escalate in South Australia depends on whether you acquired the goods or services as a consumer under section 3 of the ACL, whether the business has already been given a reasonable opportunity to fix the problem, and whether the failure is major or non-major under the ACL.

You can ask CBS to assist after reasonable attempts to resolve things with the trader directly. It assesses whether the matter is suitable and may conduct voluntary or, in selected cases, compulsory conciliation. It cannot adjudicate your claim or order a refund.

If the dispute stays unresolved, an ordinary ACL or contract claim commonly proceeds in the Magistrates Court where it has jurisdiction, rather than SACAT. Claims up to $12,000 generally use the minor civil procedure; the general civil jurisdiction extends to $100,000. Larger and specialist claims may need another court or process.

Before filing, check the defendant's legal name, any pre-action notice, the limitation period, the division, fees and representation rules.

What the law actually says

The Australian Consumer Law is a national law. It applies here as the Australian Consumer Law (SA) under the Fair Trading Act 1987 (SA). Consumer and Business Services (CBS) is South Australia's consumer regulator.

You receive the consumer guarantees automatically when you acquire goods or services as a consumer under section 3: broadly, where the price was $100,000 or less, or they were of a kind ordinarily acquired for personal, domestic or household use, or (goods only) a vehicle or trailer acquired mainly to carry goods on public roads. Any one limb is enough. Section 3 also excludes goods acquired to re-supply, or to use up or transform in trade or commerce in production, manufacture or repair, so check how it applies to you.

The guarantees that matter most in an escalation dispute are:

• Section 54 — Acceptable quality. Goods must be safe, durable, free from defects, acceptable in appearance and finish, and fit for all the purposes goods of that kind are commonly supplied for — as a reasonable consumer fully acquainted with their state and condition, including hidden defects, would regard as acceptable given the nature of the goods, the price and what was said about them.
• Section 55 — Fitness for any disclosed purpose. If you made known a particular purpose — to the seller, whoever conducted the negotiations, or the manufacturer — the goods must be reasonably fit for it, unless the circumstances show you did not rely, or that 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 the care and skill of a reasonably competent provider of that service. Section 61 covers fitness for a purpose, and a result, you made known (unless the circumstances show you didn't rely, or it was unreasonable to rely, on the supplier's skill or judgment); section 62 covers supply within a reasonable time. For those two, you can't take action if the failure happened only because of someone other than the supplier (or its agents or employees) or a cause independent of human control after supply (section 267(1)(c)).

Remedies depend on whether the failure is major or non-major. Under section 260 of the ACL, a goods failure may be major where:

• 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, 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.

Two or more failures that aren't major on their own are together a major failure if a reasonable consumer fully acquainted with them, taken as a whole, wouldn't have acquired the goods or services (sections 260(2) and 268(2), for contracts from 18 December 2020).

For a major failure, or one that can't be remedied, section 259(3) gives two alternatives: reject the goods — then elect a refund or a replacement of the same type and similar value, if reasonably available — or keep them and claim the reduction in value. Section 259(4) allows damages for other reasonably foreseeable loss in addition, major or not. For a non-major failure that can be remedied, you can require the supplier to fix it within a reasonable time (section 259(2)), and it may do so by repair, replacement or refund (section 261). If it refuses or doesn't do so within a reasonable time, you can have it fixed elsewhere and recover the reasonable cost, or reject the goods (subject to section 262).

Your refund or replacement claim runs against the supplier. Sections 271 and 272 may separately support a damages claim against a manufacturer, barred by section 273 three years after you first became, or ought reasonably to have become, aware that the guarantee was not complied with.

Rejection must still be available. Section 262 sets a rejection period running from the time of supply, lasting as long as it would be reasonable to expect that kind of failure to become apparent — not a fixed number of days, and not measured from when you noticed the fault. The ACL has no "acceptance" rule: using the goods, or having had them a while, does not by itself end the right to reject. The right ends when that period does, and also where you lost, destroyed or disposed of the goods, where they were damaged after delivery for reasons unrelated to their condition at supply, or where they have been attached to or incorporated in other property and cannot be detached or isolated without damaging them.

If you reject, tell the supplier in writing, state the ground and make the goods available. You ordinarily return them, but under section 263 the supplier must collect at its own expense where return would cost significantly because of the nature of the failure or the size, height or method of attachment. Section 263(5) stops it discharging a refund with store credit.

Services run on a separate track: the guarantees are sections 60 to 62 (section 63 sets out exceptions, not a further guarantee), the remedies are sections 267 to 270, and section 268 decides whether a services failure is major: a reasonable consumer fully acquainted with the nature and extent of the failure wouldn't have acquired the service; the service is substantially unfit for a purpose services of that kind are commonly supplied for, unfit for a particular purpose you made known, or not of such a nature, or quality, state or condition, that it might reasonably be expected to achieve a result you made known, and can't easily and within a reasonable time be remedied; or it creates an unsafe situation. For a major failure, or one that can't be remedied, you may cancel where the statutory conditions are met — section 269 then entitles you to a refund to the extent you had not consumed the services — or keep the contract and claim the reduction in value. For a non-major failure that can be remedied, you can require the supplier to fix it within a reasonable time; if it doesn't, you can have it fixed elsewhere and recover the reasonable cost, or cancel (section 267(2)).

Section 64 makes a term void to the extent that it purports to exclude, restrict or modify these guarantees, or any liability for failing to comply with them. A "no refunds after 30 days" policy, a "warranty void if opened" sticker or a clause in the fine print does not remove your statutory rights. For goods or services not of a household kind, section 64A may let a contract limit liability to repair, replacement or resupply (or the cost), unless that isn't fair or reasonable.

When this applies (and when it doesn't)

The ACL consumer guarantees apply when:

• You bought from a business. The test is whether the seller acts in trade or commerce, so most sole traders — personal trainers, tradespeople, market stallholders — count as businesses.
• You acquired them as a consumer on any one of the section 3 limbs above.
• You're claiming on a failure to meet a guarantee, not simply a change of mind.

You'll also need proof of purchase (a receipt, statement, email confirmation or loyalty record that identifies the business and the transaction), though your rights don't depend on it.

The guarantees generally do not apply when:

• You bought from a genuine private seller outside trade or commerce. Acceptable quality, fitness for purpose and correspondence with description generally do not apply — but the separate guarantees of title, undisturbed possession and freedom from undisclosed securities may, and contractual or property remedies may also be available.
• You caused the problem and the goods were damaged by abnormal use, or the fault was specifically drawn to your attention before you bought.
• The complaint is about a financial product or service. Use the firm's internal dispute-resolution process first; if it stays unresolved and the firm and complaint fall within AFCA's jurisdiction, AFCA may offer a free external pathway.

The ACL sets no fixed warranty-style expiry, but limitation laws apply and the right to reject is limited by section 262 (above).

What to do today

1. Write to the business formally.

A letter or email creates a record and gives the business a fair opportunity to respond. Be specific: the date of purchase, the failure, the guarantee you say was breached, and the remedy you want. Give a reasonable deadline: about 14 days is a practical default, not an ACL requirement. If the letter is also to serve as your notice of intention to sue, allow 21 days.

You can generate one for free using fairgo — the wizard identifies the relevant ACL sections and produces a letter you send under your own name.

2. Keep the evidence, and know what you are asking for.

Photos of the defect, the listing, packaging, repair invoices and all correspondence. Don't throw out a faulty product — without it the business may dispute the defect ever existed. If the cause of the fault is disputed, get a written report from an independent repairer or expert on cause and cost to fix; it carries more weight than your own account. If you paid by card, ask your card issuer now 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. Then decide the remedy you will ask for, and why it follows.

3. Lodge a complaint with CBS.

If the business hasn't responded or has refused, lodge a complaint at cbs.sa.gov.au. Conciliation is not automatic. Under the Fair Trading Act 1987 (SA) the Commissioner must not conciliate except at your request or with your consent, or on a referral from a court, board or tribunal — so ask for it expressly. In practice consumers request assistance after reasonable attempts with the trader, and CBS then assesses whether the matter is suitable.

Be clear what conciliation is. The conciliator does not judge the facts, give either party legal advice or make any decision, and CBS states it cannot force a trader to provide redress or make any determination. A refund is something the parties may agree to, not something CBS can award. CBS says compulsory conferences may be used for suitable serious or complex matters meeting its criteria; a trader must attend one or face a penalty, but the compulsion is to turn up, not to settle.

If you settle, get it recorded properly. The Fair Trading Act lets the Commissioner or another party apply to the Magistrates Court to enforce the agreement only where it is recorded in a written instrument signed by the Commissioner and the parties — an unsigned settlement is not enforceable by that route.

What if the business refuses

If CBS conciliation doesn't resolve the dispute — or CBS declines to conciliate — the binding forum is usually the Magistrates Court (larger and specialist claims: see below).

Why an ordinary ACL claim generally does not go to SACAT. Its published jurisdiction list includes neither the Fair Trading Act 1987 (SA) nor the ACL, and the Act applying the ACL here names the Magistrates Court repeatedly and SACAT not at all.

Before you file, work through this:

• The court and division. Up to $12,000 generally uses the minor civil procedure. Above that the Magistrates Court's general civil jurisdiction runs to $100,000, and larger claims go to the District or Supreme Court.
• The cause of action. Consumer guarantees, breach of contract, misleading conduct, debt or damages are not interchangeable, and the limitation period follows it.
• The pre-action notice. Courts SA says to give the other party a notice of intention to sue (a Final Notice or a letter of demand) and wait 21 days before filing, or you may not recover your filing costs. A CBS complaint is not that notice.
• The defendant's correct name. Use the supplier's legal entity and a valid service address, not a shop name, brand or website. Check the contract, invoice, ABN Lookup and ASIC records. An incorrectly named defendant can delay the matter or make a judgment hard to enforce.
• Representation. For claims of $12,000 or less the minor civil rules and costs scale generally apply, and a lawyer ordinarily cannot represent you at trial, subject to exceptions — though you may still get legal advice and help preparing. A company may appear through its own officer, and you may bring an unpaid support person.
• Fees and costs. A filing fee applies and a separate trial-listing fee falls due later; the schedule is reviewed periodically. Costs recovery in a minor civil action is restricted and differs from general civil proceedings — do not assume there will be no costs order, or that legal expenses will be recoverable.
• Your evidence and the orders you want. Contract, invoice, proof of payment, advertising, correspondence, photographs, quotes, any expert report and evidence of consequential loss — plus the exact amount claimed and how you calculated it.

Used vehicles may follow a specialist pathway. A vehicle bought from a licensed dealer may be covered by the dealer's statutory duty to repair under the Second-hand Vehicle Dealers Act 1995 (SA), as well as the ACL guarantees. That Act has its own eligibility rules, exclusions and time limits. CBS may assist; an individual repair or compensation claim may still need the Magistrates Court. Confirm the right pathway before lodging.

Other escalation options

• ACCC. It investigates systemic and industry-wide conduct, not individual disputes, so it is unlikely to resolve yours. See what to do when a business refuses.
• AFCA. For a financial product, insurance or banking dispute, go through the firm's internal dispute resolution first. AFCA may then be available if the firm is a member, the complaint is within its jurisdiction and in time. A court may also have jurisdiction, so check the consequences before commencing proceedings.

Common mistakes

Confusing the manufacturer's warranty with the consumer guarantee.

A warranty is a voluntary promise; the consumer guarantee is a statutory right against the supplier, and can outlast it. See consumer guarantees vs warranty.

Asking for a remedy the failure doesn't support.

Match the remedy to the failure: if the defect is minor and repairable, demanding the full purchase price is unlikely to persuade. But do not talk yourself out of consequential losses — section 259(4) allows them in addition, major or not. Claim them where they were reasonably foreseeable, are documented and caused by the failure, and you took reasonable steps to limit them.

Waiting too long, and assuming the ACL is the only clock.

The guarantees carry no fixed expiry, but the section 262 rejection period and the section 273 bar on a manufacturer claim run on their own. South Australian limitation periods run separately again and differ by cause of action — a claim for personal injury from unsafe goods is shorter than an ordinary contract claim. Check the period that applies to your claim before you rely on it. Delay also makes it harder to establish that the goods failed to comply with the applicable guarantee when supplied, even if the defect only became apparent later.

Related reading

• Business refused your refund? Here's what to do next
• What a "major failure" means under the ACL
• Consumer guarantees vs warranty: the difference that matters
• Escalating a consumer complaint in the ACT
• Escalating a consumer complaint in the Northern Territory

This article is general information about Australian Consumer Law, not legal advice. It also describes South Australian complaint and court processes — CBS conciliation, the Magistrates Court and other courts, SACAT, the ACCC, AFCA and used-vehicle legislation — whose jurisdiction, limitation periods, conciliation criteria, pre-action requirements, fees, representation rules and costs sit outside the ACL and can change. Confirm the current requirements with the relevant body before lodging a complaint or commencing proceedings. For advice on your specific case, see your state or territory consumer body — full list at /agencies.