5.1 Any reform of the Disposal of Uncollected Goods Act must balance the rights of bailees and others unwillingly in possession of goods and the property rights of owners. The following recommendations seek to achieve that balance.

I. REMEDIES AVAILABLE TO ALL BAILEES

5.2 The two remedies in the Disposal of Uncollected Goods Act should be available to all persons in possession of uncollected goods, whether as bailees for reward or not. The stringency of the notice provisions should be varied according to the value of the goods. For example:

(a) if the value of the goods is insignificant, or less than the combined cost to the bailee of their removal, storage and sale, the bailee should be able to sell, or otherwise dispose of, or in certain circumstances, destroy the goods one month after giving the owner notice of the intention to do so;

(b) where the goods are of more than the insignificant value, but worth less than say $500, the Act should provide alternative remedies of either a right of sale by notice as currently set out in the Act, but requiring only 3 months storage, or the court procedure currently set out by the Act;

(c) where the value of the goods is wore than $500, the same alternatives ought to be offered, but the storage requirement should be retained at 6 months.

II. PRIVATE AGREEMENTS

5.3 Those in business should be encouraged to make more use of private agreements outside the Act to set their own conditions and to create their own rights of sale. Section 16 of the Act permits such private agreements. To complement this the Act should be altered to include a minimum notice provision of three months (less for goods of insignificant value) which could not be varied by private agreement.

III. GOODS OUTSIDE BAILMENT

5.4 An additional category should be inserted into the Act to cover “goods held other than by bailment for reward” to cover those arrangements discussed in this Report that are currently outside the ambit of the Act. As there is no question that the reliance of the Act on the term “bailment” creates problems, it would be better to avoid the use of the term altogether. In practice, however, the creation and application of an alternative definition which will both take account of all the elements covered by bailment, as well as recognise all the problems inherent in the concept, would be difficult. It is clear that in practice most of the difficulties with terminology could be overcome by the use of the provision noted above. This provision would be intended include those areas that are left in doubt by the common law definition of bailment.

IV. PUBLIC AUCTIONS

5.5 The requirement that the sale of goods be by public auction and in separate lots, should be deleted from the Act. Bailees should be allowed to dispose of goods as they wish, provided full records are kept. An exception to this should be made in relation to goods of more than a specified value; for example, goods worth more than $500.

V. RECORDS AND SURPLUS PAYMENTS

5.6 There are two provisions in the Act which the Commission recommends should be retained. These are:

(a) requirements that records of all the goods sold be kept for up to six years after their disposal for inspection by the bailor. The recommendations of this Report are designed to make it easier for a bailee to dispose of uncollected goods. Given this, bailees should be accountable for their actions, at least to the standards set by the current Act. While these provisions can be cumbersome, they are necessary for the effective enforcement of the Act. Similarly the requirement for storage of the goods cannot be avoided, and can only be reduced as recommended above.

(b) proceeds of sale which exceed the value of the goods are paid to Consolidated Revenue. This may discourage resort to the Act. However, the aim of the legislation is not to provide a profit for a bailee, but to provide a legal means of disposing of the goods.

5.7 Other Acts dealing with unclaimed goods contain similar procedures for the payment of surplus proceeds into Consolidated Revenue. The one exception to this is in relation to lost property found on public transport, which may in some circumstances be claimed by the finder. It is important to note, however, that the goods themselves are handed to the finder. If the goods are sold the proceeds are paid into Consolidated Revenue.

VI. CONCLUSIONS

A. Retention of Disposal of Uncollected Goods Act

5.8 After examining both the Disposal of Uncollected Goods Act 1966 and the common law, the Commission considers that the current Act should be retained with some amendments. These are summarised in paragraph 5.12 below.

B. Information Needs

5.9 As a result of this inquiry the Commission has concluded that there is a lack of awareness of the existence and effect of the Disposal of Uncollected Goods Act amongst those who might benefit from its provisions. A person in possession of uncollected goods is unlikely to be aware of the rights or obligations in the Act. Such ignorance is hardly surprising. The holder of uncollected goods would seldom regard them as being of sufficient value to warrant seeking legal advice on their disposal. The most easily available guide to the law for lay readers, The Law Handbook, contains no information on the subject.¹

5.10 The Commission considers that this lack of knowledge of the existing law in the community might be as much a problem as any deficiencies in the Disposal of Uncollected Goods Act itself. Accordingly, the Commission has taken a cautious approach and is recommending that the Act be retained, but with some amendments. The information needs identified by the Commission might be met by the preparation of a brief, simple guide to the rights, liabilities and remedies available under the Disposal of Uncollected Goods Act. Such a brochure should be prepared by the Attorney General’s Department, and should be distributed widely, particularly to repairers of goods.

5.11 Once information regarding available procedures becomes widespread, any problems with these procedures will become apparent. It might then be appropriate to undertake a further, more detailed review of the Disposal of Uncollected Goods Act.

C. Recommendations

5.12 The Commission therefore makes the following recommendations:

Recommendation 1

The Disposal of Uncollected Goods Act (1966) in the following manner:

(a) The remedies available under the Act should be extended to include all bailees and possessors of goods (5.2).

(b) The stringency of notice provisions should be varied according to the value of the goods (5.2).

(c) Section 16 of the Act should be amended to include a “minimum notice” provision from which parties cannot contract out. This would also vary according to the value of the goods (5.3).

(d) An additional category should be inserted into the Act directed at “goods held other than by bailment” to cover relationships outside the ambit of the current Act (5.4).

(e) The requirement of sale by public auction in separate lots [s6(0(d)], should. only apply to goods worth more than $500. In all other cases, the bailee should be allowed to dispose of goods as he or she wishes, provided full records are kept (5.5).

Recommendation 2

A brochure should be published and distributed to community groups and associations representing persons who face the problem of disposing of uncollected goods in order to publicise the procedures available.

1. Redfern Legal Centre (2nd ed, 1986).