The Australian Consumer Law (“ACL”) came into effect from 1 January 2011, creating a uniform national scheme for consumer protecting and fair trading. If you have purchased a product that is defective, you may have rights against the supplier and/or manufacturer under the ACL.

Who is a manufacturer?

The ACL defines the term manufacturer quite broadly. Under the ACL, manufacturers include both the entities that are the actual manufacturers of the product and also entities who are deemed to be the manufacturers.

Still confused? Simply put, the manufacturer of a product may be the entity that:

  • produced the product;
  • held themselves out as a manufacturer of the product;
  • allowed their name or brand to be applied to the product; or
  • imported the product into Australia where the actual manufacturer of the product does not have a place of business in Australia.

What can I do if I cannot identify the manufacturer?

If you have purchased a defective product and you wish to make a claim against the manufacturer, but you cannot identify or are having difficulties identifying the manufacturer of the product, you can approach the supplier and request the name of the manufacturer.

The supplier has 30 days to comply with your request. If after 30 days, the supplier has not responded or refuses to provide you with the relevant information, then the supplier themselves is deemed to be the manufacturer and you can take the same action against the supplier.

When can I make a claim against a manufacturer?

There are provisions under the ACL which allow a claim to be made against a manufacturer where a product has a safety defect.

There are 2 elements to finding a safety defect:

  • expectation; and
  • entitlement to a certain standard of safety.

This requires more than just being able to show that the product was of poor quality.

What remedies are available against a manufacturer?

As a consumer, you may seek to recover damages against the manufacturer of a product if the manufacturer has failed to comply with certain consumer guarantees. However, you should note that if an action is brought against a manufacturer, your remedy is limited to damages and the scope of such damages is limited.

If you have suffered loss or damage as a result of a product with a safety defect, you may make a compensation claim against the manufacturer for:

  • personal injuries which arose as a result of the defect;
  • losses relating to other consumer products; and
  • losses relating to lands, buildings or fixtures.

You should note that when you seek compensation, for example, you seek a compensatory amount of $1,000.00, even if the product is found to have a safety defect, the Court may not grant you the full $1,000.00 as compensation. When the Court assesses compensation payable to you, the Court will take into account any acts which may have contributed to the loss and the Court may reduce the amount of the loss at its discretion.

Conclusion

Not every problem in a product gives rise to a claim against a supplier or manufacturer. If you believe that you have received a faulty or defective product, and the supplier and/or manufacturer is not responding to your requests for a repair, refund or replacement, then you should seek assistance from a business lawyer. A business lawyer would be able to explain your rights under the ACL and provide you with guidance as to the next steps.

Priscilla Ng

Next Steps

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