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Australian Consumer Law

To,

Mr Rod Sims,

I have made the following evaluations on a case that I would like to bring to your attention.

Date:

Overview of Facts of The Case

Samantha is a retired 60-year-old teacher who was receiving an old-age pension and has recently moved in 2016. She is having a limited understanding of English and has rented several appliances from Marshall Rentals (MR). In the account of MR she was having and arrears of her account with the total sum of $2750. The total amount is due 30th September 2018. Samantha called MR, on 7th September 2018, for having more information and also requested to arrange a payment plan to pay off her debt. She later got involved in a car accident on 13th September 2018, before the discussion over the payment plan could have been made. Samantha was in hospital until the 30th of September, in that time she received calls and a letter from Marshall Rentals regarding the debt. Although, Samantha did not get to read the letter or call back due to her stay in the hospital. After receiving no response from Samantha, MR sold her debt to Debt Results First (DRF), a debt collection agency.

On the 5th of October, Ian explained to Charmaine of DRF that his mother had been in an accident and could not speak to anyone for a while.

Darren from DRF demanded the payment be made within 7 days on the 12th of October on a phone call with her. Samantha explained her situation to Darren but he continued to demand payment and even had threatened her of the legal proceedings if she did not adhere to the deadline provided. Samantha was not in good conditions to understand all this and her son also conveyed to Darren of the same but goes in vain.

Samantha received a final notice letter from DRF where there was a claim that she had 7 days to pay the debt. Another letter was received on 22 October, stating she had 48 hours to pay otherwise legal action will be commenced against her. All this even led to her readmission into the hospital because of stress-causing severe chest pains.

Unconscionable Conduct

The unconscionable conductor has not been given any precise legal definition but has developed as per the cases governed by the courts over time. Conduct can be considered as unconscionable if it is particularly oppressive or harsh to the individual and should be more than simply unfair with suggesting that it must be against the conscience of the prudent man and must be against the norms of society[1].

As far as the act of the DRF is considered in this particular situation, their act and behaviour is certainly falling under the category of unconscionable conduct and it can even be evident with the various judgement of the Australian courts where the courts have found transactions or the dealings to be unconscionable when they are involving serious misconduct or are deliberate or involving conduct which is clearly unreasonable and unfair[2].

The DRF is having an internal policy where the debtors who have been experiencing hardship is provided with some payment plan with reasonable terms to ensure that they are not being pursued with unreasonable options. It is also significant to consider that Samantha has been consistently told and provided with various phone calls and letters which were frequently suggesting the intention of the DRF of commencing any legal action against Samantha. These actions of DRF is falling under the category of unconscionable conduct as they are found to be forcing Samantha despite being conveyed of the financial hardship and the health issues faced by Samantha with her accident. Moreover, their several calls and attempts without the consideration of the payment plan due to the financial issue of Samantha are also suggesting that this conduct of DRF was unconscionable conduct and must be considered. In a joint majority judgement in the case of ASIC V Kolbeit[3], Chief Justice Keifel and Justice Bell have also focused on the narrow interpretation of this term of unconscionable conduct. It has been suggested in this case that there is a requirement on the part of the trader where they have exploited or otherwise any advantage out of the disadvantage situation of the customer.

This again justifies that the financial hardship and bad health of Samantha and her situation have been considered by the DRF to exploit her and is falling under the interpretation of unconscionable conduct. This clearly suggests that ACCC can take action against DRF with the charges of unconscionable conduct by DRF.

Misleading and Deceptive Conduct

As far as the misleading and deceptive conduct is analysed in this particular situation, the consideration of the provisions of demonstrating deceptive conduct provided under the Competition and Consumer Act 2010 (Cth) is significant. It has been provided that a person who has been in trade or commerce must not engage in any conductor which is misleading or deceptive in nature or is likely to mislead or deceive[4].

A claim of misleading and deceptive conduct against the DRF can be filed by Samantha in the Australian Competition and Consumer Commission as there are instances of misrepresentation concerning the payment plan which could have been provided to her considering her financial hardship and health issues. The ACCC will be looking into this matter. The term deceptive and misleading have not been defined in the ACL but this conducts usually require the misrepresentation on the part of the one-party which is not sufficient in nature or is either misleading or deceptive conduct.

The court usually analysed the facts of the case in question concerning the judgement over the conduct to be misleading or deceptive in the whole transaction of the case[5] and same will be considered by ACCC. It has been found that the courts will be focusing on the conducts and if they are likely to mislead[6] and there is no such concern over the actual deception or any damage or loss to the consumer. Whereas in this particular situation of Samantha, she has been the victim of misleading and deceptive conduct of both MR as well as DRF as the act of MR where they sold the debt of Samantha to a debt collection agency called DRF is misleading as she was not conveyed the same properly by MR. Also, the conduct of DRF when they do not convey to Samantha concerning the internal policy where the debtors with the experience of hardship will have been provided with some time as well as a payment plan which is reasonable and agreeable to both the parties. Also, she was consistently misled by the debt collection agency of the initiation of any legal proceeding against her for not clearing the debt. On the other hand, as per the policy of DRF, they cannot take legal proceeding against her at this stage where she has not even been provided with a payment plan despite having hardships. This can also be related to another case of Singtel Optus Pty Ltd v Australian Competition and Consumer Commission[7] where the internet company has made a misleading advertisement with related to the plants offered by the company and what not disclosed to the consumers.

Harassment and Coercion

As far as the conduct of these two parties engaged in this case of Samantha is considered, the conduct can be considered as having harassment and coercion from the end of the one-party towards the another.

It has been provided by the Australian Consumer Law to coerce or use physical force in connection with the payment or any supply of services or goods is to be considered as harassment and coercion[8].

Harassment and coercion are the persistent disturbance or torment and is also including unwanted persistent telephone calls or the debt collectors who were making repeated and relentless calls to the debtor concerning the debt. As far as coercion is considered, it is also been concerned with the supply of the goods are services or concerning the payment of any service of goods. In this present matter of Samantha, it has been found that there are almost 18 phone calls along with sending of a total of 12 letters of demand to Samantha by the DRF which is clearly suggesting be the impact of the harassment and coercion provided under the Australian consumer law. The consideration of the case of ACCC v McCaskey[9] is significant here as the outcome of the case and the action taken by ACCC can be considered as a warning to debt collectors as well as suppliers concerning the protection of the consumers from the acts like an excessive number of telephone calls or adoption of aggressive and abusive man on telephone calls.

This harassment and coercion have even resulted in the bad health and severe chest pains to Samantha leading her to readmission into the hospital. The analysis of the facts of this case is indicating the presence of coercion as well as harassment on the part of both the organisations called MR and DRF. The MR is also contributing to this coercion and harassment when they sold the debt of Samantha to a debt collection agency called DRF on her non-response to the letter of the arrangement of the payment plan. The MR has not considered the situation of Samantha or even not tried to look into the hardships faced by her and directly sold her debt to a debt collection agency. Whereas the debt collection agency has not even considered their own internal policy of providing a payment plan to those debtors who have been facing hardships concerning the payment of the debt. They have the policy of providing a payment plan with the reasonable time agreed between both the party is to ensure that the data has had a time of relaxation and not a hardship. This again was not followed and the debt collection agency has harassed as well as coerced for making the payment with the 18 phone calls and a total of 12 letters. The case of ACM Group Ltd. is also significant in this regard where two consumers were harassed and coerced for their debts and the Federal Court ordered the ACM to pay $750,000 for misleading, harassing and coercing consumers[10].

Bibliography for Australian Consumer Law

Acts/ Legislations

Competition and Consumer Act 2010 (Cth)

Cases

ACCC v McCaskey (2000)

ACCC v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802 (‘Quantum Housing‘).

ACM Group Ltd (ACN 127 181 097)

ASIC v Kobelt [2019] HCA 18

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216.

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 (7 March 2012)

[1] s 21 of ACL.

[2] ACCC v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802 (‘Quantum Housing‘).

[3] ASIC v Kobelt [2019] HCA 18

[4] S18 (1) of of the ACL.

[5] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216.

[6] 1 Trade Practices Act 1974 (Cth), ss 52, 82, 87; Fair Trading Act 1999 (Vic) ss 9, 159; Australian Consumer Law (being Competition and Consumer Act 2010 (Cth), Sch 2), ss 18, 236-238, 243, from 1 January 2011 (Australian Consumer Law applies as a law of the State of Victoria under Australian Consumer Law and Fair Trading Act 2012 (Vic), s 8); Corporations Act 2001 (Cth), ss 1041H, 1041I, 1325; Australian Securities and Investment Commission Act 2001 (Cth), ss 12DA, 12GF, 12GM.

[7] Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 (7 March 2012)

[8] s 50 of ACL.

[9] ACCC v McCaskey (2000)

[10] ACM Group Ltd (ACN 127 181 097).

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