44Limitation period

44 Limitation period Subject to Part II of the **Limitation of Actions Act 1958**, a cause of action under this Part is taken to have first accrued at the time of discharge. Chapter 4—General business provisions Part 4.1—Debt collection 45 Prohibited debt collection practices (1) A person must not in trade or commerce engage in a prohibited debt collection practice while— (a) collecting or attempting to collect a debt; or (b) repossessing or attempting to repossess goods. Penalty: 240 penalty units, in the case of a natural person; (2) In subsection (1), prohibited debt collection practice means— (a) using physical force or undue harassment or coercion; (b) entering or threatening to enter a private residence without lawful authority; (c) using any threat, deception or misrepresentation to obtain consent to enter a private residence; (d) refusing to leave a private residence or workplace when requested to do so; (e) doing or threatening to do any act that may intimidate a person or a member of that person's family; Carrying a firearm within the meaning of the **Firearms Act 1996** or a dangerous article within the meaning of the **Control of Weapons Act 1990**. (f) doing or threatening to do any act that may expose to ridicule a person or a member of that person's family; Parking a vehicle outside a debtor's private residence that displays information that a person is engaged in debt collection. (g) using a document that is not an official document but that resembles or purports to be an official document; **Examples** Any document that gives the appearance of having been authorised, issued or approved by a court, government or government agency when it has not been. Serving a summons that has not been issued. (h) impersonating an employee or agent of the State, another state, a Territory or the Commonwealth; (i) attempting to take possession of or threatening to take possession of any property to which the person, or the person's principal, is not entitled to possession; Making a representation that immediate possession will be taken of a debtor's home or other property when a debt is not secured by that property or the creditor has not obtained judgment for the debt. (j) disclosing or threatening to disclose debt information, without the consent of the debtor, to any other person who does not have a clear and legitimate interest in the information; Disclosing debt information when contacting a person who is not the debtor while attempting to locate or identify the debtor. (k) making a false or misleading representation in connection with— (i) the nature of a debt; or (ii) the extent of a debt; or (iii) the consequences of not paying a debt; or (iv) the method of recovering a debt; **Examples** 1 Falsely representing that a debt is a fine or other pecuniary penalty, or that a person has committed an offence. 2 Using a letterhead which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead. 3 Falsely representing to a person who is not a debtor that, in relation to a debt, the person must prove or make a statutory declaration that he or she does not owe the debt. 4 Threatening to give a credit reporting agency information that could affect a person's creditworthiness that could not be given or that would, if given, be false or misleading. (l) contacting a person by a method that the person has asked not to be used, unless there is no other method available; (m) contacting a person about a debt after the person advises in writing that no further communication should be made about that debt, unless the contact is by way of— (i) an action issued through a court or VCAT; or S. 45(2)(m)(ii) amended by No. 50/2014 s. 9(a). (ii) the threat of an action that the person to whom the debt is owed is entitled to issue through a court or VCAT and which the person intends to take; or S. 45(2)(m)(iii) inserted by No. 50/2014 s. 9(b), amended by No. 12/2015 s. 8. (iii) a communication with the person for the purposes of complying with the National Credit Code; (n) communicating with a person under 18 years of age in relation to a debt, if the person is not the debtor; (o) demanding the payment of a debt from a person without having a belief on reasonable grounds that the person is— (i) the debtor or the debtor's agent or representative; and (ii) liable for the debt; (p) communicating with a person in a manner that is unreasonable in its frequency, nature or content. (3) In subsection (2), ***debtor*** includes a mortgagor or guarantor of a debtor. S. 45(4) amended by No. 47/2014 s. 249. (4) For the purposes of subsection (2)(g), ***official document*** includes a summons, a court document, a VCAT document, a notice issued under the **Infringements Act 2006** or the **Fines Reform Act 2014** and any other communication that is authorised, issued or approved by a court, VCAT, a government or a government agency. Section 38 of the **Interpretation of Legislation Act 1984** defines ***document***. (5) This section does not apply to any of the following acting in an official capacity— (a) the sheriff or a sheriff's officer; S. 45(5)(b) substituted by No. 37/2014 s. 10(Sch. item 6.2). (b) a police officer; (c) a bailiff; (d) any other employee or agent of the State, another state, a Territory or the Commonwealth.