Division 1 Director-General and staff
6 Control and direction by Minister
The Director-General is, in the exercise of functions as Director-General, subject to the control and direction of the Minister except in relation to the contents of a report or recommendation.
8 Delegation by Director-General
(1) The Director-General may delegate to any person or committee the exercise of any of the functions conferred or imposed on the Director-General by or under the following:(a) this Act,(b) (Repealed)(b1) Fitness Services (Pre-paid Fees) Act 2000,(c) Home Building Act 1989,(d) Motor Dealers Act 1974,(e) Motor Vehicle Repairs Act 1980,(f), (g) (Repealed)(h) any other Act administered by the Minister,(i) any other Act prescribed by the regulations for the purposes of this section (or the prescribed provisions of any other prescribed Act),(j) the regulations under any such Act.(2) A delegate of the Director-General may sub-delegate a function if authorised in writing to do so by the Director-General.(3) This section does not apply to the functions of the Director-General under section 79A.
9 Functions of Director-General
(1) The Director-General may:(a) advise persons in relation to the provisions of this Act, and of any other legislation administered by the Minister, and take action for remedying infringements of, or for securing compliance with, those provisions, whether on complaint or otherwise,(b) make available to consumers, and persons dealing with consumers, general information with respect to:(i) this Act and other legislation administered by the Minister, and(ii) matters affecting the interests of consumers,(c) receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Director-General considers to be appropriate,(d) investigate the matter the subject of a complaint received under paragraph (c) or refer the complaint to a public authority, or any other body, that the Director-General considers to be best able to take action, or provide advice, in relation to the complaint, and(e) make known, for the guidance of consumers and persons dealing with consumers, the rights and obligations arising under laws relating to the interests of consumers.(2) The Director-General shall:(a) keep under critical examination, and from time to time report to the Minister on, the laws in force, and other matters, relating to the interests of consumers, and(b) report to the Minister on matters relating to the interests of consumers that are referred to the Director-General by the Minister,and, for those purposes, may conduct research and make investigations.(3) Where a complaint is received under subsection (1) (c), the Director-General may:(a) investigate the complaint even if it has been referred to a public authority or to another body, or(b) refer the complaint to a public authority, or any other body, even if an investigation of the matter has been commenced or completed by the Director-General.(4) The Director-General is to have regard, in carrying out his or her functions under this Act, to the need for communication, co-operation and co-ordination in relation to relevant co-operative legislative schemes.
(1) The Director-General may enter into, or approve of, an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the Director-General and the agency.(2) The information to which an information sharing arrangement may relate is limited to the following:(a) information concerning investigations, law enforcement, assessment of complaints, licensing or disciplinary matters,(b) probity assessments and reference checks concerning persons who provide, or propose to provide, goods or services to consumers,(c) any other information affecting the interests of consumers,(d) any other information of a type prescribed by the regulations.(3) Under an information sharing arrangement, the Director-General and the relevant agency are, despite any other Act or law of the State, authorised:(a) to request and receive information held by the other party to the arrangement, and(b) to disclose information to the other party,but only to the extent that the information is reasonably necessary:(c) to assist in the exercise of functions (existing NSW fair trading functions) under this Act (or any other Act administered by the Minister for Fair Trading, whether solely or jointly with another Minister) or of the functions of the relevant agency concerned, or(d) to assist in a proposed transfer of existing NSW fair trading functions to the relevant agency concerned or a proposed transfer of functions of the relevant agency concerned to the Minister, Director-General or other fair trading agency of the State.(4) The Director-General may also (whether as part of an information sharing arrangement or otherwise):(a) refer any matter (including any complaint) with respect to fair trading or that affects the interests of consumers to a fair trading agency or law enforcement agency, and(b) receive any such matter from a fair trading agency or law enforcement agency, and(c) conduct a joint investigation into any such matter with a fair trading agency or law enforcement agency.(5) Any such fair trading agency or law enforcement agency is, despite any other Act or law of the State, authorised to refer such a matter to the Director-General or to conduct an investigation into the matter jointly with the Director-General.(6) This section does not:(a) limit the functions that may be exercised by the Director-General under section 9, or(b) require the Director-General to provide information to a relevant agency only in accordance with an information sharing arrangement where that information can otherwise be lawfully provided, or(c) limit the operation of any other Act or law under which a relevant agency is authorised or required to disclose information to another person or body.(7) In this section:fair trading agency means an agency of the State, or of the Commonwealth, another State or Territory or an overseas jurisdiction, that exercises functions under an enactment with respect to fair trading.
information includes reports, recommendations, opinions, assessments and operational plans.
law enforcement agency means:
(a) the NSW Police Force or the police force of another State or Territory or of an overseas jurisdiction, or(b) the Australian Federal Police, or(c) the New South Wales Crime Commission, or(d) the Australian Crime Commission, or(e) any other authority or person responsible for the investigation or prosecution of offences against the laws of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction.relevant agency means:
(a) a fair trading agency, or(b) a law enforcement agency, or(c) any other agency of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction, or(d) any other person or body that exercises functions, in the public interest, that involve protecting the interests of consumers.
(1) No liability is incurred by the Crown and no personal liability is incurred by:(a) the Minister, the Director-General, an investigator or any other officer,(b) a member of the Products Safety Committee, or(c) a member of an advisory committee or advisory council,for any act done or omitted, or for any statement made or issued, by any of them or by a committee or council referred to in paragraph (b) or (c) in good faith in the course of the administration or execution of this Act.(2) No liability is incurred by a person for publishing in good faith:(a) a statement referred to in subsection (1), or(b) a fair report or summary of such a statement.(3) In this section:liability includes liability for defamation.
The annual report of the Department prepared under the Annual Reports (Departments) Act 1985 for a financial year shall include a report on the operations of the Director-General during that year.
In this Division:court includes a tribunal.
12 Making of application for legal assistance
(1) A person who claims to be a consumer and who:(a) wishes to bring legal proceedings (other than criminal proceedings) arising out of the supply to the person of goods or services or the disposal to the person of an interest in land, or(b) wishes to make an appeal or seek judicial review in relation to legal proceedings of a kind referred to in paragraph (a), or(c) is a party to legal proceedings or proceedings relating to an appeal or review referred to in paragraph (a) or (b),may apply to the Director-General for assistance in the conduct of the proceedings.(2) An application under subsection (1) shall:(a) be in or to the effect of a form approved by the Director-General,(b) include the particulars required to complete the form, and(c) be verified in the manner required by the Director-General.
(1) The Director-General may grant an application made under section 12 if:(a) the Director-General is satisfied that the applicant has reasonable grounds for bringing, or being a party to, the proceedings to which the application relates,(b) the Director-General is of the opinion that it is desirable, in the general interests of consumers or of any class of consumers, that assistance should be granted, and(c) (Repealed)(d) the Director-General has received the written approval of the Minister to grant the assistance applied for.(2) The Director-General may refuse assistance if of the opinion that it should not be granted because of the applicant’s financial position.(3) The Director-General shall notify an applicant under section 12 of the grant or refusal of the application and, where an application is granted:(a) the applicant shall not, without the consent of the Director-General, withdraw from the proceedings or discharge any Australian legal practitioner to whom the case is assigned under section 14, or any Australian legal practitioner acting in the proceedings,(b) the applicant shall not, except to the extent authorised or required by the Director-General, interfere, or be involved, in the case, and(c) the Director-General has, to the exclusion of the successful applicant, the same control over and the same rights in respect of the case (including the right to settle or compromise any claim arising in the case) as, but for that exclusion, would have been available to the assisted person.(4) Assistance granted under this Division does not extend to expenses other than:(a) the costs of legal representation, and(b) prescribed expenses.(5) Expenses incurred in the provision of assistance under this Division, court fees and any costs required to be met by the Director-General under section 16 shall be met out of money to be provided by Parliament.
14 Assignment to Australian legal practitioner of case of assisted person
(1) On granting assistance to a person under section 13, the Director-General shall assign the person’s case:(a) with the consent of the Legal Aid Commission of New South Wales—to the Chief Executive Officer of that Commission or a member of its staff,(b) to an Australian legal practitioner employed in the Department,(c) with the consent of the Department Head of another Government Department—to an Australian legal practitioner employed in that Government Department, or(d) to an Australian legal practitioner practising on his or her own account who has indicated to the Director-General a willingness to undertake the conduct of the cases of assisted persons,and shall give to the assisted person written notification of the relevant particulars of the Australian legal practitioner to whom the case has been assigned.(2) The Australian legal practitioner to whom a person’s case is assigned under this section may, on behalf of the person, appear in any court and conduct any matter or proceeding relating to the case, either personally or, with the consent of the Director-General, by another Australian legal practitioner.(3) An Australian legal practitioner to whom a case has been assigned under this section may not terminate the assignment without the leave of the Director-General.
15 Court proceedings to which assisted person is a party
(1) If proceedings have been brought in a case to which an Australian legal practitioner has been assigned under section 14, the Australian legal practitioner shall, as soon as practicable after the assignment and before taking any other step in the proceedings:(a) serve on the other party or parties to the proceedings, and(b) file in the court in which the proceedings are pending,a notice to the effect that he or she is undertaking the conduct of the case.(2) If a notice is filed under subsection (1):(a) the proceedings are stayed for a period of 14 days, and(b) unless otherwise ordered by the court—time fixed for the doing of any act or taking any step in the proceedings does not run during that period.(3) The filing of a notice under subsection (1) does not prevent:(a) the making of any interlocutory order which, in the opinion of the court, is necessary to prevent injustice, or(b) unless otherwise ordered by the court, the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect any such order.(4) The period during which proceedings are stayed by subsection (2) may be reduced or extended by order of the court.(5) A fee is not payable for the filing of a notice under subsection (1).(6) If, in proceedings for which a person has been granted assistance under section 13:(a) a party makes a counterclaim, or pleads a set-off, and(b) the counterclaim or set-off does not relate to the supply of goods or services, or the disposal of an interest in land, to the assisted person,the court may, on the application of the Director-General, order that the counterclaim or set-off be dealt with separately, and may make such other orders or give such directions as it thinks fit.
16 Costs and expenses etc relating to proceedings to which assisted person is a party
(1) If a person is granted assistance under section 13, the court shall, in making an order for costs:(a) in favour of the assisted person—make the same order (except against another assisted person) as the court would have made in favour of the assisted person if the person had not been an assisted person, or(b) against the assisted person—make the same order (except in favour of another assisted person) as the court would have made against the assisted person if the person had not been an assisted person.(2) If an order for costs is made in accordance with subsection (1) (a):(a) the costs are payable to the Director-General instead of the person in whose favour the order is made,(b) the costs may be recovered by the Director-General as a debt due to the Crown, and(c) the costs, upon being paid to or recovered by the Director-General, shall be paid into the Consolidated Fund.(3) If an order for costs is made in accordance with subsection (1) (b), the costs shall be paid by the Director-General.(4) Except in the case of costs payable to the Director-General, money awarded by a court in favour of an assisted person is payable to the person without deduction.
17 Privilege attaching to certain relationships
The same privileges as those which arise from the relationship of client and Australian legal practitioner acting in his or her professional capacity and in the course of his or her professional employment arise from the relationship between:(a) a person who has applied for assistance under section 12 or who has been granted that assistance under section 13, and(b) the Director-General and the Australian legal practitioner (if any) to whom the person’s case is assigned under section 14,and from the relationship between the Director-General and the Australian legal practitioner.