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The Disposal of Uncollected Goods Act 1970 (the DUG Act) was introduced in 1970 following a report by the Law Reform Commission (LRC report) which recommended that legislation be enacted to permit a bailee (business or receiver of goods) to dispose of goods which have not legislation drafted by the LRC.2
In general terms, bailment is a common form of business arrangement or contract whereby a person who owns a good (the bailor) delivers the good to another person (the bailee/business) on a temporary basis for a specific purpose such as for repairs, delivery or storage. Typically, the bailee retains possession of the good, pending its collection by the owner (bailor), or redelivery to the bailor.
In this paper the term ‘bailor’ has been replaced with the terms ‘owner’ or ‘customer’, while the term ‘bailee’ has been replaced with the terms ‘business’ or ‘receiver of the goods’ in order to make it simpler to understand the legislation and proposals.
Goods can remain uncollected for a number of reasons. Sometimes the owner simply forgets the goods or leaves the goods behind by accident. Owners can also leave goods in someone else’s possession and subsequently decide not to collect the goods because it is inconvenient to do so, they cannot afford to pay for repairs, or the cost of repairs is greater than the value of the goods.
Businesses can experience difficulty disposing of uncollected and abandoned goods because the common law requires persons in receipt of or in possession of another person’s goods to keep and preserve the goods until the owner collects them. A receiver of goods may be reluctant to dispose of the goods because the risk of doing so without the owner’s consent is too high.
The DUG Act was designed to address these difficulties and provide a method for the disposal of uncollected goods. Persons who utilise the DUG Act’s provisions and procedures when disposing of uncollected goods are provided with protection from owners who may otherwise seek financial compensation under common law for disposing of such goods. It is not mandatory to utilise the DUG Act when disposing of uncollected goods but those persons who do not follow the Act’s processes run the risk of an owner taking legal action against them.
Since the DUG Act came into operation in 1970, there have been major advances in technology and communications as well as changes to laws that, collectively, have had a profound impact on the marketplace and the way in which businesses, consumers and government interact.
Despite these changes, there have been no substantive amendments to the DUG Act in Western Australia since 1970, other than to increase the threshold value of uncollected goods at which a business must seek an order from the Magistrates Court to dispose of those goods. The threshold was increased from $300 to $3500 in June 2017 under the Disposal of Uncollected Goods Amendment Act 2016 to adjust for inflation between 1970 and 2016, and to ease the administrative burden on the receiver of goods.
The DUG Act is currently under review to try to reduce the regulatory burden placed on a receiver of goods while maintaining appropriate levels of protection for owners of goods.
Accordingly, the Consumer Protection is seeking submissions from stakeholders, businesses and members of the public on a range of proposed changes to the DUG Act.
Tables have been inserted in the body of the report so comparisons can be made between laws applied in various Australian jurisdictions. A more detailed comparative summary table of major provisions applying to the disposal of uncollected goods in all jurisdictions appears at Attachment A.