Once upon a time in the land of his irresponsible student youth, the author admits that upon receiving his first ever shiny credit card, he did incur debts that he couldn’t pay back with speed. And so began the relentless chase by the ‘friendly’ credit recovery business. Day and night for weeks on end the phone calls and angry letters (this was pre email folks) flooded in threatening ‘immediate’ legal action if he did not find the money and pronto. After several weeks of intimidation the misery merchants upped the ante and started to appear on the young fella’s doorstep even warning his flatmate of the fate that would await him.
Damn that holiday in Cairns and those brand new sneakers… that shiny plastic just made it feel so easy at the time.
Looking back on this terrifying experience, with all its warnings and terse language it left very little room for flexibility and negotiation. Is it still an acceptable approach in the eyes of the law?

For those who have been put in a similar situation, you will be relieved to know that there is now much more civil approach required by debt collectors which is enforced by the ACCC.
The ACCC notes that: “The need for collection activity and harassment will be greatly reduced when debtors act promptly and responsibly, and collectors are flexible, fair and realistic.”

And it’s true that (aside from wayward youth), many people default on their debts because of circumstances beyond their control, such as unemployment, illness or family breakdown. Most people are honest and want to meet their commitments if given a reasonable opportunity to do so. The ACCC, and indeed ASIC, now actively encourage flexibility on the part of creditors and collectors.

Some of this flexibility includes recognising debtors who are vulnerable and experiencing financial hardship, and recognising that debtors may have a number of debts owing to different creditors. A flexible approach involves making meaningful and sustainable payment arrangements that reasonably take into account a debtor’s ongoing living expenses to enable them to live in basic comfort and prevent impoverishment or humiliation. If your in this situation make sure any negotiation with a debt collection service, bank or utility company doesn’t leave you in a precarious situation where you’re struggling to survive.

Your Right To Privacy

Under our privacy laws, debt collectors have obligations to protect the privacy of anyone who owes them money. These days the situation I faced of having people turn up on my doorstep warning others about my impending gloom is just not on. The same applies to phone calls to third parties letting them know about your debt.
A debt collection service’s first task when contacting is to to ensure that the person they are dealing with is the actual debtor. This must be done every time they make contact before you divulge any information about the debt, the process for its recovery or before providing any other confidential information. So if your flatmate, work colleague, or mum are being told about your debt you can make a complaint to the ACCC

Contact with a debtor must also be made at a reasonable hour, taking into account your circumstances and reasonable wishes. The current guidelines for reasonable contact times are:

Contact by telephone:  Monday to Friday 7.30am -9pm
Weekends 9 am to 8 pm
National public holidays – no contact
The same time frames apply to face to face contact.

And if you feel they are engaging in unnecessary or unduly frequent contacts then it is undue harassment and can also be flagged with the ACCC. Current guidelines are that debt collectors not contact a debtor more than three times per week, or 10 times per month at most. This also includes when they ring and don’t leave a message.

Under consumer protection law, any frequent contact designed to wear down or exhaust a debtor, or likely to have this effect, is ‘undue harassment’ and must be avoided. For example, this is particularly likely if a debt collector makes a number of phone calls or other contacts in rapid succession.

There are also legal obligations under the Privacy Act 1988 (Cth) which are designed to protect your personal information. For example, obtaining a debtor’s contact details from your employer is collecting their personal information and is not allowed. Telling your neighbour the reason for trying to find you (a debt) will also disclose personal information about you and is also not allowed.

When It Isn’t Your Debt

If you have have already confirmed your identity and liability they can continue to pursue you. However, if you disputed that the debt is yours or that it never occurred or has already been paid any collection activity (including credit report listing) must be suspended.

If any collection activity is continued without properly investigating claims that a debt is not owed, the collector is potentially breaching the law.

Reasonable steps must also be taken by a debt collector to ensure that you are the alleged debtor. If your identity as the debtor cannot be established with sufficient certainty (because they deny their identity and you do not have any other supporting evidence to the contrary) all contact with that person should cease. Failure by a collector to do so may risk breaching the Privacy Act. You should also ask for a letter from them confirming the collecting has ceased

It is also misleading for debt collectors to state or imply that you must prove you are not liable for the debt. In legal proceedings, proof of the debt ALWAYS lies with the person alleging the debt (the collection agency).

How To Resolve A Dispute

Many industries (including telecommunications companies, utility suppliers and financial services businesses) belong to independent external dispute resolution schemes.

The ACCC and ASIC have always supported the role played by these schemes in resolving consumer complaints and disputes when these are unable to be resolved through the creditor or debt collector’s internal dispute resolution processes.

So if it’s become a nightmare dealing with tell them you want to have the matter resolved by an independent dispute resolution service

Still getting nowhere with a collector or feel their behaviour is out of hand? Then make a complaint or at least contact the ACCC to discuss further options HERE.

And never put up with threatening calls (or letters) which run off a script like this which have been shown by the court to constitute misleading and deceptive behaviour and undue harassment under the Australian Consumer Law :

‘Mr/Mrs/Ms. (Surname), the reason for my call to you today is a courtesy call due to the fact that I have received your physical file this morning from our solicitors. I have unfortunately been requested by our solicitors to put forward a final recommendation in reference to the outstanding amount of $(Balance) and will need to finalise my recommendation by no later than (x)

This debt collection agency manual then encouraged collections officers to make the strong suggestion that lawyers had already been involved in the account with phrases such as:
• I have received strict instructions from my solicitor, to proceed with litigation…
• I don’t even know where your matter is up to as our solicitors have you…
• I have just come out of a meeting with the solicitor with respect to three matters unfortunately one was yours…
• By tomorrow 3 pm this account will accumulate $350.00 worth of legal fees…
• Your account has been brought from the solicitor’s office and they are expecting a response from me as to proceed with litigation at 2.30 pm this afternoon…
• Just a reminder that our solicitors have given you one last chance to settle this account…

The court found that there was no lawyer involved at all and the sole intention of this “script” was to scare the willies out of any alleged debtor. What a bloody cheek and the collection agency was suitably punished by the court!

Don’t forget to check out more of your basic consumer rights HERE.

It’s a  jungle out there.
And for those of you hunting down your cars final resting place in those suburban supermarket car parks, you better watch out. For lurking behind every concrete pole and tree are those charming patrol people, ready to pounce the minute you break their car park company’s rules. But let’s cut to the chase. Do they have a right to ‘fine’ you if you don’t pay a fee; don’t put a ticket on your dash; or overstay their limited period of grace?

Well, the first thing to put straight is they don’t have any right to ‘fine’ you.  A few years ago a private car park operator, ACE Parking Pty Ltd, was hauled over the coals by the Victorian Supreme Court for using terms on their parking tickets that misled consumers about their rights.  The Court also found that requests for payments issued by ACE mimicked fines issued by the local council, using terminology like ‘offence’, ‘breach’ and ‘fines.’ What scallywags indeed! It is important to know that private car park operators do not  have a right to ‘fine’ consumers. Unfortunately, that hasn’t stopped these private car park companies from continuing on their merry way.  These days, when you get back to your car and find a ticket  on your windshield, it will still have the look of a ‘fine’ but it’s really just a claim for ‘damages’ because you broke the contract.

And what contract was that I hear you say?  Well these companies have signs placed here and there around the car parks which have longwinded terms that you must agree to in order to park your car. I tried once to read one  that was placed very conveniently at the car park entrance, but was advised by the driver directly behind me to “get a bloody move on”. The terms are normally written in print so small that even the meanest optometrist would not use them to check your distance vision. For example, if you stay too long in the car park, or don’t have your ticket displayed, this supposedly  breaches the contract. The amount for payment on the ticket stuck on your window is supposed to represent the loss (or liquidated damages)  suffered by the company.
However, many unhappy consumers receiving these demands have wondered exactly what sort of grand loss was really suffered by these companies. One angry parker, Mr John Vico, took the matter concerning his ‘fine’ to the Victorian Civil and Administrative Tribunal (Vico v Care Park Pty Ltd).      Mr Vico  wanted some clarity about whether his $88 ticket for ‘damages’  for not having a ticket was indeed fair.  In this case, the maximum cost he would have paid to park there was only $15.  The hearing was presided over by Mrs Silvana Wilson who stated that: “The sum of $88, when compared to the sum of $15 was “out of all proportion”, it was “extravagant and unconscionable”, it was “in the nature of a punishment” and it was not “a genuine pre-estimate of loss”. The end result was that the car park company was told to reverse out of the Court and never try sneaky exaggeration about ‘damages’  again.  Perhaps if they’d only asked for the $15 the Court might have said, “that’s fair enough”! Now this doesn’t mean that if you get one of these tickets you can just throw it in the bin.

But here’s some pointers that may help you:
Forgot to put the ticket for free parking on your dash and got ‘fined’?
You could ignore this ticket as you haven’t really created a situation where damages are owed.
Overstayed your welcome by an hour or so and got ‘fined’?
Once again, there really isn’t any loss or damage the car park operator has suffered so you really don’t need to pay the ticket.  It’s up to you.
Constantly using the car park every day for your parking and never paying?
For example, your windshield might look like this…

I’m afraid you’ve been rather naughty and have caused ‘damage’ to the car park operator by hogging the property it uses as its business… so you won’t have a strong case for not paying the damages demanded. Finally, do keep in mind that it is quiet a chore for these private car park companies to find out your address details to send follow up notices when you don’t pay.  Often with first time offenders, they just don’t bother chasing you. To make things even worse for them, in Victoria, as of 26 August 2015, there are restrictions on private car park operators accessing your name and address from the VicRoads registration database. Without your name and address they will not be able to issue demands for payment. And definitely don’t write to them and give away the details of your address.
That’s exactly what they want you to do.  Let them do the chasing!
And remember, if you are getting hassled for amounts that don’t seem fair you can always talk to Consumer Affairs.  You may be even entitled to take your complaint to your local small claims tribunal or Court. Oh and one final thing, that parking ticket with the red writing I have pictured here…It’s been 20 months since I got (and ignored) it and I never heard another thing from them.
I guess in some jungles, the bark is a lot worse than the bite!

Your rights when dealing with airlines
The diversity of airlines and travel options means that more people than ever in history now fly commercially either for work or leisure. Experiences of airline travel vary – well they do for me at least. Sometimes it is a pleasant (or at least not terrible) experience with enjoyable in-flight entertainment, a polite person seated alongside (or even better a vacant seat), no turbulence, and seamless transitions from the terminal to aircraft, and successfully ending with baggage collection.
Other times some of those elements fail, resulting in a less than enjoyable experience, or worse, an accident. As a customer of airline services, it is important you are aware of your rights and how to assert them. This applies to minor issues such as finding out who to complaint to when your baggage is lost, to very serious instances relating to the airlines’ liability for injury or loss of life.

How you’re covered under the law
∗ The principle law regulating airlines’ responsibilities to passengers in Australia is the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) which, for international travel, gives effect to the international Convention for the Unification of Certain Rules for International Carriage by Air (“The 1999 Montreal Convention”). It also controls airline responsibility for domestic flights.
This legislation sets out when an airline (called a carrier) is liable for:
♦ the death of a passenger;
♦ any injury suffered by you as a passenger;
♦ and the destruction, loss, or injury of your baggage.
However, there may also be circumstances when you might have an issue with an airline’s service that doesn’t necessarily fall under the legislation.
This could involve:
♦ flight delays or cancellations;
♦ telephone or internet reservations;
♦ customer service at the airport or inflight;
♦ baggage services;
♦ fees and charges;
♦ safety and security;
♦ airport lounge facilities;
♦ frequent flyer program terms and conditions;
♦ discrimination,
♦ services for customers with specific needs;
♦ and requests for refunds.
In such cases, we generally recommend passengers make a complaint directly to the airline, at the time of the issue or incident, if possible.

How to make a complaint
All Australian airlines have information on how to deal with disputes in their ‘Customer Charter’ or similar document. The customer charter is an outline of the airline’s commitment to the customer and should be found on their website. Most accept complaints or feedback in the ‘contact us’ section of their website. If your complaint is unresolved after: you have already tried to resolve your complaint directly with the airline; you have sought a review of the response; you have allowed for the timeframes specified in the customer charter; and the complaint is related to an event or circumstances that occurred within the last 12 months, you can lodge a complaint with the Airline Customer Advocate.

This is an industry based scheme to facilitate the resolution of complaints from customers about airline service provided by the participating Australian airlines (Jetstar, Qantas, Rex, Tiger, Virgin Australia). Once the Airline Customer Advocate receives your complaint they will review it and follow up with you if they need to clarify any details. They will then assign your complaint to a case manager at the airline concerned. The case manager may contact you to attempt to resolve the complaint directly with you but they have a responsibility to prepare a written response to you that will first be reviewed by the Airline Customer Advocate. You will receive a response within 20 working days.

Still not satisfied?
If you are not satisfied with the outcome, the Airline Customer Advocate will advise you about alternative avenues for dispute resolution. This is a useful avenue for passengers to adopt when they feel underwhelmed with their airline’s service, or feel unfairly treated. There is a lot that can be done by way of “self-help” without involving a lawyer, when dealing with an airline.
The Legal Eagle would like to thank our supersonic advocate and lawyer Joseph Wheeler for this piece.
For further guidance, drop him a line at Australia’s Air & Space Lawyers (IALPG): enquiries@ialpg.com.