Fair Trading (Motor Vehicle Industry Dispute Resolution Code) Regulations 2014

These regulations prescribe and operationalise an industry dispute-resolution code for the motor vehicle sector under the Fair Trading Act 1987. Mechanically, they do three principal things.

First, they prescribe the Motor Vehicle Industry Dispute Resolution Code 2014 as an industry code under Part 3A of the Fair Trading Act and assign administration of that code, and of Part 3A in relation to it, to the Small Business Commissioner (reg 4(1)-(2); Schedule 1, short title and application). That links the code into the Act’s regime for industry codes and places responsibility for decisions and administration with the Small Business Commissioner, who acts through authorised officers.

Second, the regulations convert certain contraventions of the code into civil penalty contraventions under the Act. A contravention of section 28E of the Fair Trading Act that is constituted by a contravention of the code is to be treated as a civil penalty matter under Part 7 Division 3A of the Act (reg 5(1)). The regulations fix expiation fees for alleged civil penalty contraventions that involve the code, differentiating between bodies corporate ($4,000) and natural persons ($500) (reg 5(2)).

Third, the regulations set out fees and cost allocation for dispute resolution processes run under the code. If an authorised officer arranges mediation with the parties’ agreement, each party must pay $195 for each day or part day of mediation; that fee is recoverable as a debt due to the Crown, but the Commissioner has discretion to waive the fee in particular cases (reg 6(1)-(3)). The code itself sets procedural rules for alternative dispute resolution, including thresholds for commencement, mandatory participation and cooperation obligations, powers to refer disputes to mediation or appoint experts, confidentiality of communications, and the form and use of certificates issued on completion or termination (Schedule 1 cl 4(1)-(13)).

In short, the regulations integrate a sector-specific ADR code into the Fair Trading Act, create enforceable participation and conduct obligations, attach financial consequences for non‑compliance and for mediation, and vest significant procedural discretion in the Small Business Commissioner and authorised officers.

The instrument rests on a small set of statutory concepts that drive who participates, when the Commissioner may act, and what obligations apply in the ADR process.

Industry code: The Motor Vehicle Industry Dispute Resolution Code 2014 is formally prescribed as an industry code for the purposes of Part 3A of the Fair Trading Act (reg 4(1)). That prescription imports the Part 3A framework into disputes between defined participants in the motor vehicle industry.

Participants and motor vehicle business: The code defines the scope of regulated parties. A participant in the motor vehicle industry is anyone engaged in motor vehicle business, a business connected to motor vehicle business, or a supplier of goods or services to motor vehicle businesses where the supply occurs in connection with that business (Schedule 1 cl 2). Motor vehicle follows the definition in the Motor Vehicles Act 1959, which the regulations incorporate by reference (Schedule 1 cl 2). The code therefore extends beyond manufacturers and dealers to connected service providers and suppliers, where the supply is in relation to motor vehicle business.

Authorised officer and Commissioner: The Commissioner is the Small Business Commissioner as defined in the regulations (reg 3). The Commissioner is responsible for administration of the code and Part 3A in relation to the code (reg 4(2)). The code contemplates authorised officers acting under the Commissioner’s authority to commence, conduct, suspend or terminate an alternative dispute resolution procedure and to make procedural requests of parties (Schedule 1 cl 4(1), (4), (7)-(11)).

Alternative dispute resolution procedure (ADR): The code prescribes the form and limits of ADR. Notably, the code defines "alternative dispute resolution procedure" but expressly excludes arbitration from that meaning (Schedule 1 cl 2). The ADR process may include mediation or expert assistance (cl 4(7)), and communications made or documents prepared in connection with ADR are confidential unless parties and the authorised officer otherwise agree; however, the certificate issued on completion may be produced in court or tribunal (cl 4(11)-(13)).

Compulsion and conduct obligations: The code permits an authorised officer, after satisfaction of preliminary thresholds, to notify parties that ADR is commencing; once commenced, parties must attend or otherwise participate as required (cl 4(1)-(2)). Participants must act reasonably, fairly, honestly and cooperatively and must not mislead, harass, intimidate or oppress another party (cl 4(3)). Parties must comply with reasonable requests for information, attendance and participation, and with requests to send authorised decision-makers to the process (cl 4(4)-(6)).

The instrument names and implicates distinct classes of persons and entities and assigns roles and financial obligations.

Participants in motor vehicle industry: The primary class is participants in the motor vehicle industry, defined as persons engaged in motor vehicle business, businesses connected to motor vehicle business, and suppliers of goods or services supplied in connection with motor vehicle business (Schedule 1 cl 2). That definition captures a broad commercial ecosystem. It includes manufacturers, distributors, suppliers, those doing repair or restoration work, sellers of parts and accessories, and third-party suppliers who supply goods or services in connection with those businesses.

Persons to whom goods or services are or may be supplied: The code applies to disputes between a participant and another participant or any person to whom goods or services are or may be supplied by the participant in connection with motor vehicle business (Schedule 1 cl 3). This extends coverage to end customers, intermediaries or prospective recipients of supply where disputes arise in the acquisition or supply context.

Small Business Commissioner and authorised officers: Administratively, the Commissioner (the Small Business Commissioner under reg 3) is responsible for administering the code and Part 3A in relation to it (reg 4(2)). The Commissioner, acting through authorised officers, is empowered to commence ADR, make procedural directions, refer matters to mediation, appoint experts, suspend or terminate proceedings, and issue completion or termination certificates (Schedule 1 cl 4). Entities interacting with the code will therefore deal directly with the Commissioner’s office and authorised officers.

Bodies corporate and natural persons facing civil penalties: The regulations impose expiation fees for alleged civil penalty contraventions involving the code, set at $4,000 for bodies corporate and $500 for natural persons (reg 5(2)). That creates asymmetric monetary exposure for entities depending on legal form. Parties to disputes should be aware that contraventions of the code, when constituting contraventions of s 28E of the Fair Trading Act, will be treated under the civil penalty regime (reg 5(1)).

Parties bearing mediation and expert costs: If mediation is arranged by an authorised officer with the parties’ agreement, each party must pay $195 per day or part day of mediation (reg 6(1)). Parties are equally liable for costs of expert advice ordered by the authorised officer unless they agree a different apportionment (Schedule 1 cl 4(8)). Those costs fall directly on the parties unless there is an agreement otherwise or a waiver by the Commissioner in the case of mediation fees (reg 6(3)).

The code and regulations set out mandatory duties for parties and powers for the Commissioner and authorised officers, as well as specified rights.

Duties on parties to apply and attempt resolution: A party seeking ADR under the code must apply in writing and, before an authorised officer will commence ADR, must have made a reasonable attempt to resolve the dispute and the subject matter must not be frivolous or vexatious (Schedule 1 cl 4(1)(a)-(b)). The preliminary duty on applicants is to attempt private resolution before seeking the Commissioner’s intervention.

Duty to attend and participate: Once an authorised officer notifies the parties that ADR is commencing, a party or a person authorised in writing to attend on their behalf must attend or otherwise participate in the procedure as required by the authorised officer (cl 4(2)). This establishes a mandatory participation duty once the officer has triggered ADR.

Behavioural duties in ADR: Participants are required to act reasonably, fairly, honestly and cooperatively and must not mislead, harass, intimidate or oppress another party (cl 4(3)). Those are express conduct standards applicable during ADR.

Duty to comply with reasonable procedural requests: A person must comply with any reasonable request by the authorised officer to facilitate resolution, including exchanging relevant information, answering questions, attending meetings, and participating in mediation or other ADR (cl 4(4)). Requests to provide authorised decision-makers may also be made and must be complied with (cl 4(5)-(6)). Written requests must be complied with as soon as reasonably practicable and in any event, within 14 days or a longer period allowed by the officer (cl 4(6)).

Cost-related duties: If the authorised officer appoints an expert to provide advice, parties are equally liable for the expert’s costs unless they agree a different apportionment (cl 4(7)(b), (8)). If mediation is arranged by an authorised officer with the parties’ agreement, each party must pay $195 per day or part day of mediation (reg 6(1)). Those amounts are recoverable as a debt to the Crown (reg 6(2)), but the Commissioner may waive the mediation fee in particular cases (reg 6(3)).

Commissioner’s and authorised officers’ powers and duties: The Commissioner is responsible for administering the code and Part 3A in relation to it (reg 4(2)). An authorised officer may commence ADR where preliminary thresholds are met (cl 4(1)), refer disputes to mediation or appoint expert advisers (cl 4(7)), suspend or terminate ADR where the dispute is before a court or tribunal, arbitration or another ADR, or where there is no reasonable prospect of resolution or the subject matter is frivolous or vexatious (cl 4(9)-(10)). Following completion or termination, the authorised officer must provide a certificate detailing the parties, nature of matters in dispute, whether the procedure was terminated without resolution, and the terms of any resolution (cl 4(11)). The officer also controls confidentiality settings unless parties agree otherwise (cl 4(12)-(13)).

The regulations link breach of the code to the Fair Trading Act’s civil penalty regime and set out monetary and procedural enforcement mechanisms.

Civil penalty linkage: A contravention of section 28E of the Fair Trading Act that is constituted by contravening the code is expressly made subject to a civil penalty under Part 7 Division 3A of the Act (reg 5(1)). The regulations themselves do not restate the content of s 28E or the full civil penalty scheme. Instead they create the legal pathway by which a contravention of the code can be treated as a civil penalty contravention under the Act.

Expiation fees: The regulations set statutory expiation fees for alleged civil penalty contraventions involving the code: $4,000 for a body corporate and $500 for a natural person (reg 5(2)). Those figures are the prescribed expiation amounts and are the immediate monetary consequence flagged by the instrument for an alleged contravention that is dealt with by expiation rather than further civil penalty proceedings.

Recovery of mediation fees as Crown debt: Mediation fees payable by parties where mediation is arranged by an authorised officer with the parties’ agreement are recoverable as a debt due to the Crown (reg 6(2)). That makes non-payment actionable as a recoverable debt rather than only an administrative charge.

Commissioner discretion to waive fees: The Commissioner has power to waive mediation fees where the Commissioner is satisfied it is appropriate in a particular case (reg 6(3)). That creates administrative discretion that can mitigate enforcement of fee recovery in individual circumstances.

Role of authorised officers: Authorised officers, acting under the Commissioner, have powers to commence ADR, require attendance and participation, request authorised decision-makers, appoint experts, and issue certificates on completion or termination (Schedule 1 cl 4(1)-(11)). Those procedural powers are the mechanism by which the Commissioner’s office enforces participation and obtains records of outcomes.

Suspension or termination where other proceedings exist: The authorised officer may suspend or terminate ADR if the dispute is the subject of court or tribunal proceedings, arbitration or another ADR procedure (cl 4(9)). That is an enforcement mechanism that prevents parallel processes and indicates that ADR under the code yields to competing adjudicative processes.

Confidentiality and exception for certificates: Communications and documents arising in ADR are confidential unless the officer and parties agree otherwise (cl 4(12)). The certificate produced by the authorised officer, however, may be produced before a court or tribunal (cl 4(13)). That creates a controlled evidentiary channel: the substance of ADR discussions remains confidential except for the formal certificate which is admissible.

The regulations are not a standalone instrument; they operate by cross-reference to key provisions of the Fair Trading Act and to the Motor Vehicles Act 1959, and they create interfaces with court and arbitration processes.

Integration with the Fair Trading Act 1987: The regulations expressly prescribe the Motor Vehicle Industry Dispute Resolution Code as an industry code under Part 3A of the Fair Trading Act (reg 4(1)). Administrative responsibility for the code and Part 3A as applied to the code is vested in the Small Business Commissioner (reg 4(2)). The regulations further state that contraventions of s 28E of the Act constituted by breaches of the code are civil penalty contraventions under Part 7 Division 3A of the Act (reg 5(1)). Those provisions mean that the code’s procedural rules are enforceable through the Fair Trading Act’s industry-code and civil penalty apparatus.

Reference to Motor Vehicles Act 1959: The code adopts the statutory definition of motor vehicle from the Motor Vehicles Act 1959 (Schedule 1 cl 2). That anchor determines the class of goods and services and therefore the scope of disputes covered. By importing that definition, the code’s application will track the Motor Vehicles Act’s concept of motor vehicle, with any consequences flowing from how that term is defined in the Motor Vehicles Act.

Interaction with adjudicative processes: The authorised officer may suspend or terminate ADR if the dispute is the subject of proceedings before a court or tribunal, arbitration or another ADR procedure (Schedule 1 cl 4(9)). This provides a prioritisation rule: where there is active litigation, arbitration or ADR, the Commissioner’s ADR process can be suspended or terminated. Conversely, the certificate produced on completion of ADR may be produced before a court or tribunal (cl 4(11)-(13)), creating a pathway for ADR outcomes or termination notices to enter adjudicative proceedings as evidence.

Exclusion of arbitration from ADR: The code’s definition of "alternative dispute resolution procedure" expressly excludes arbitration (Schedule 1 cl 2). Where parties have an arbitration agreement or where a dispute is arbitration-bound, the code’s ADR cannot be used as an alternative to arbitration; further, an ongoing arbitration is a ground on which an authorised officer may suspend or terminate ADR (cl 4(9)(b)).

Confidentiality with statutory exception: Communications and documents prepared in connection with ADR are confidential unless the authorised officer and the parties agree otherwise (cl 4(12)). However, the certificate produced under cl 4(11) can be produced in court or tribunal (cl 4(13)). That means confidentiality is the default but not absolute for the certificate. Parties should note that some ADR communications remain expressly non-admissible in court only to the extent they are not reflected in the certificate.

The instrument contains a short legislative history that records creation and commencement, and there are no amendments recorded in the text provided.

Date of making and commencement: The principal regulations are recorded as Year 2014 No 26 and the Gazette reference is 30.1.2014 p430. Regulation 2 stipulates that the regulations come into operation on the day on which they are made (reg 2). The legislative history appendix repeats the Gazette reference and the date of commencement as 30 January 2014 (Legislative history; Principal regulations table). The regulations are therefore contemporaneously made and commenced on that date.

Short title and citation: Regulation 1 provides the short title as the Fair Trading (Motor Vehicle Industry Dispute Resolution Code) Regulations 2014. Schedule 1 contains the short title for the code itself, Motor Vehicle Industry Dispute Resolution Code 2014 (Schedule 1, cl 1).

No amendment entries in the instrument: The copy of the instrument provided lists the principal regulations and the date of gazettal and commencement. There are no entries indicating subsequent amendments, repeals, or consolidated versions within the document. The legislative history section contains only the principal regulations entry.

Administrative responsibility declared on prescription: The regulations indicate that prescribing the code as an industry code for the purposes of Part 3A of the Act is a purposeful act at commencement (reg 4(1)). The Small Business Commissioner is assigned responsibility for administration upon prescription (reg 4(2)); that administrative assignment is part of the instrument’s operative text at first operation.

Implications for users seeking amendment history: The instrument itself provides the initial enactment and commencement information. The absence of further amendment entries in the document supplied does not preclude later amendments existing elsewhere, but such amendments are not recorded in this instrument as presented. Users requiring a current consolidated view should consult the official legislation database or the Government Gazette referenced for any later changes; the instrument’s own legislative history here is limited to the original making and commencement details.

The document supplied does not record any judicial or tribunal decisions that interpret, apply, or challenge the regulations or the Motor Vehicle Industry Dispute Resolution Code. The legislative history section contains only the instrument’s gazettal and commencement information and does not list any related litigation or case references.

Certificate admissibility and potential litigation relevance: The code contemplates interaction with courts and tribunals through the admissibility of the authorised officer’s certificate. The officer must, after completion or termination of ADR, provide a certificate stating the parties’ names, the nature of matters in dispute, whether the procedure was terminated without resolution, or the terms of any resolution (Schedule 1 cl 4(11)). That certificate "may be produced before a court or tribunal" (cl 4(13)). The text therefore creates a statutory document that can be relied on in later proceedings. While the instrument contains no reported decisions, the certificate provision is likely to be the primary procedural touchpoint for courts and tribunals in any litigation connected to ADR under the code.

No jurisdictional cases recorded in the instrument: The regulations do not identify any case law or tribunal decisions. They do not incorporate judicial interpretation or state limits as articulated by courts. There is therefore no litigation history set out in this instrument to analyse for precedent, claims construction or enforcement patterns.

Practical note: Because the instrument’s text makes ADR certificates admissible in courts and tribunals, future litigation may involve questions about the weight and effect of such certificates, confidentiality limits, and whether a party’s conduct in ADR has probative relevance in subsequent proceedings. None of those issues are addressed by reported decisions within this instrument.

Researchers and practitioners should therefore treat the litigation history in this document as empty: the instrument provides operational mechanics and evidentiary possibilities but offers no recorded judicial treatments. For any authoritative statements about judicial interpretation, one must locate and examine decisions external to this instrument.

This code contains several operational and legal features that can generate practical surprises if overlooked. Each item below points to the specific textual source.

Compulsory participation once ADR is commenced: An authorised officer may commence ADR after being satisfied that the applicant party has attempted resolution and that the dispute is not frivolous or vexatious (Schedule 1 cl 4(1)). Once ADR commences, parties must attend or otherwise participate as required by the authorised officer (cl 4(2)). That means parties can be compelled to participate in ADR once an authorised officer has taken the procedural step to commence it.

Short written compliance timeframe: Requests made by an authorised officer in writing must be complied with "as soon as reasonably practicable, and, in any event ... within 14 days" unless a longer period is allowed by the officer (cl 4(6)). This is a concrete short compliance window for document exchanges, answers to questions, attendance, or other requested actions.

Authorised persons to resolve: The authorised officer may request that a participant in the procedure be a person authorised to resolve the dispute (cl 4(5)). Businesses that send persons without authority to settle may be ordered to present someone authorised, which can delay processes if internal authorisations are not prepared.

Mediation requires parties’ agreement but is arranged by the authorised officer: The mediation fee provision applies only "if an authorised officer arranges for mediation of a dispute under the code with the agreement of the parties" (reg 6(1)). Parties therefore have a practical right to refuse to agree to an officer-arranged mediation, but where they do agree, fees attach.

Mediation fee is recoverable as Crown debt; waiver is discretionary: The $195 per party per day fee is recoverable as a debt due to the Crown (reg 6(2)). The Commissioner has the discretion to waive the fee (reg 6(3)). The combination of recoverability and waiver power means unpaid fees can be pursued by Crown remedies unless the Commissioner exercises the waiver power.

Confidentiality is not absolute: Communications and documents in ADR are confidential unless the authorised officer and the parties otherwise agree (cl 4(12)). However, the certificate provided at completion or termination may be produced before a court or tribunal (cl 4(13)). Parties who assume total confidentiality may be surprised that the formal certificate is admissible in later proceedings.

Equal liability for expert costs unless otherwise agreed: If an expert is appointed by the authorised officer to provide advice, parties are equally liable for those costs unless they agree a different apportionment (cl 4(7)(b), (8)). Parties should not assume costs will be apportioned to the unsuccessful party unless they negotiate an alternative.

Compliance under this code requires a mix of pre-emptive record-keeping, process readiness, and tactical responses to authorised officer requests. Below are compliance steps tied to the specific provisions.

Before applying for ADR: Before seeking the Commissioner’s ADR under the code, any party should ensure it has made a "reasonable attempt to resolve the dispute" and that the dispute is not frivolous or vexatious, because an authorised officer will only commence ADR if satisfied with those prerequisites (Schedule 1 cl 4(1)(a)-(b)). Keep contemporaneous records of settlement communications, offers, denials, invoices, service records, inspections, and correspondence to evidence attempts to resolve matters privately.

Application process: Make any application for ADR in writing, as the authorised officer’s power to commence ADR is triggered "on written application by a party" (cl 4(1)). Ensure the application identifies the parties, sets out the facts, the attempts to resolve, and the nature of the relief or resolution sought.

Prepare for mandatory participation once ADR commences: If notified that ADR is commencing, ensure an appropriate person attends or is authorised in writing to attend on your behalf (cl 4(2)). The authorised officer may request that the person attending be authorised to resolve the dispute (cl 4(5)). Businesses should pre-authorise representatives with settlement authority or have company officers readily available.

Comply promptly with procedural requests: Anticipate requests to exchange relevant information, answer questions, attend meetings, or participate in mediation, and comply within the 14‑day written request deadline unless the authorised officer allows a longer period (cl 4(4)-(6)). Set internal deadlines earlier than the statutory 14 days to allow for internal approvals and document production.

Conduct during ADR: Ensure all participating staff understand the conduct standards: act reasonably, fairly, honestly and cooperatively and do not mislead, harass, intimidate or oppress another party (cl 4(3)). Train front-line staff and legal representatives on these standards to avoid conduct that might be relied upon in later proceedings or invoked as a contravention.

Cost management: If the authorised officer refers the dispute to mediation and arranges it with the parties’ agreement, each party must pay $195 per day or part day (reg 6(1)). Build that amount into budgets for dispute resolution and be prepared to pay quickly because the fee is recoverable as a debt to the Crown (reg 6(2)). Consider requesting the Commissioner to waive the fee where appropriate, recognising that waiver is discretionary (reg 6(3)). For expert appointments by the authorised officer, parties should negotiate cost apportionment if they wish to depart from the default equal liability (cl 4(7)(b), (8)).