Written by Katie Vilsbaek
When a consumer has purchased a product which fails, they have certain rights to seek remedies under the Australian Consumer Law. The most common type of claim a consumer can bring is against the supplier of a product and/or against the manufacturer. Often a consumer will either know where they bought the product, have the receipt for it or have a bank record of paying for it. This enables the consumer to identify the supplier, but identifying the manufacturer can be more difficult.
In these situations, a consumer can utilise Section 147 of the Australian Consumer Law, which proves a useful tool when the identity of the supplier of a defective product is known, but not the manufacturer.
Section 147 of the ACL sets out that a person who wishes to institute a defective goods action, but does not know the identity of the manufacturer, may give written notice to the supplier of the good requesting the identity of the manufacturer, within 30 days.
If, after 30 days, the person still does not know who the manufacturer is, then the supplier to whom the request was made is taken to be the manufacturer of the good, for the purpose of a defective goods liability action.
In other words, the consumer can write to the supplier of the defective goods and require them to identify the manufacturer within 30 days. If they fail to do so, then the supplier itself is deemed to be the manufacturer – even if it has no involvement in the actual manufacturing of the goods.
Section 147 is a very powerful tool. When the supplier complies with the request, the consumer will find out who the manufacturer is (and they can then pursue a claim against the manufacturer). When the supplier does not comply with the request, then the consumer has improved the strength of their claim as they can now claim against the supplier as if they were the manufacturer.
Implications for Insurers
Where an insurer is acting for the supplier, often the supplier will pass on the Section 147 notice to its insurer for it to deal with. It is critical that the supplier and its insurer promptly and properly respond to that notice, to avoid increasing the potential liability of the supplier.
Where an insurer is representing the consumer, it is important to understand the clear benefits of issuing these notices and utilising them where appropriate.
In summary, take Section 147 notices seriously, utilise them where possible and provide the notice to your insurer and/or lawyer as soon as it is received.
Should you wish to discuss any of the above, please contact Katie Vilsbaek on 02 8047 2887 or any member of the Ligeti Partners team on 03 9947 4500.
