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Re: [SLUG] Telstra Outages





Jobst Schmalenbach wrote:

> > no chance of a refund on that
>
> I am not sure but wouldnt this be a case for the ACCC?

Not from the perspective of misleading statements, there's a much better part of the Trade Practices
Act that Telstra is probably running fowl of as we speak.

Informed "bush lawyer" time.  Here's the law - read and consider.  Have any of you been "misled as
to your rights"?  Have you got proof?  Get Proof. Write a letter.  Then write another to ACCC with
the proof.

Division 2 of Part V of the Act provides for certain non-excludable conditions to be implied in ALL
consumer transactions.

This is the section of the Act that gives rise to the phrase "except as provided by the Trade
Practices Act" that is found in all warranty statements in Australia, usually just after the passage
on what is excluded from a warranty.

These are also known as the "guaranteed warranties".  Any action you take in relation to these
"warranties" would not be under the TP Act but other law such as  "Sale of Goods Act" etc.

THE REAL OFFENCE under Trade Practices law comes when the provider / supplier / manufacturer
attempts to MISLEAD A CONSUMER AS TO THEIR RIGHTS as set out in this part of the Act.

For example:
Suppose one of you who were deprived of the service last Thursday was a Uni Student (exams have been
on over the last couple of weeks) and one of their "purposes" for having ADSL or other internet
connection was to facilitate their studies.

Our student writes emails and faxes a letter of complaint to several people/addresses in Pigbond
stating that as this was one of his main reasons for selecting that level of service and asking for
a free month of service or a refund for that month.

Several replies may result but none are likely to agree to a months free service or refund.

If you find just one that suggests that you are not entitled to a FREE MONTH either by direct
assertion or implied as the result of an offer of  ~$1.00 credit or more, THAT IS ABSOLUTE PROOF of
them attempting to MISLEAD A CONSUMER AS TO THEIR RIGHTS as set out in  s.66 through s.74 of the
Trade Practices Act. (s.68A  and s.74K define the replacement or refund)

If, say 5 different consumers  presented the ACCC with such letters they would take action.  If the
ACCC runs the matter  (as opposed to individuals) any resulting conviction is a CRIMINAL CONVICTION
against the company.

As you are purchasing the service in MONTHLY blocks, then a significant fault affecting several
hours means that particular MONTH the service did not meet one of the following:

s.74B     breach of fitness for purpose
 the student, a business to have its email look up prices etc., a private individual for
entertainment and so - on any purpose suggested in Tel$tra's literature,ads, web pages OR specified
by you at the time you had the service installed (e.g.: "I want this service so I can check out all
the porn on my days off" - if Thursday was you day off...... )

s.74C non correspondence with description

s.74D  breach of merchantable quality
from what I hear about frequency of outages this probably applies too.

s. 74E  non correspondence with sample

s.74F failure to provide facilities for repairs or parts.
??? could be a stretch

s74G  non compliance with terms of an express warranty

REMEMBER WHEN WRITING YOUR LETTERS

1.  DON'T GET LEGAL
2. Just complain of the poor quality of the service due to the outages OR that it's failure last
Thursday prevented interfered with your ability to study for Friday's exam which is after all the
main reason you purchased the service etc.
3.Ask for a FREE MONTH.

When you get your responses here's the ACCC contacts to complain to about being "ripped off " -
DON'T USE ANY LEGAL PHRASING in your complaint.

Telecommunications
General Manager - Michael Cosgrave (03) 9290 1914
Melbourne

Consumer Protection
Carl Buik - (02) 6243 1066
Canberra


No I'm not a lawyer, just reasonably well versed in this stuff from the company point of view -
no-one wants a $10 million fine.

I think there are a couple of solicitors on the list, but if they comment it might have some sort of
implications about you weren't "misled" 'cause you had a legal opinion.

Cheers
John Morrissey


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