NSW Criminal Law and Refund - What Can I be Charged With?

[Hany Salama]

I recently purchased a second-hand vehicle privately from an employee of a local business. The car was advertised for sale outside the business in their car park and when I paid for it, the transaction occurred inside the business premises.

The car was not advertised with any faults and was told that it had a new motor.

I do not drive much, so a few days later, when I took it for a long drive (5km), it overheated and fortunately was about 1/2 km from my regular mechanic. I took the car to him, he had a quick look but as he is busy and has a 3 week waiting list, I booked it in for a inspection. I managed to get home.

I did not dive the car until my mechanic was able to have a good look. Upon inspection, he informed me that it needed a new head and would cost in excess of $3000 and that the seller was aware of this and failed to declare this.

I rang the seller's place of employment and I was informed he was away on holidays and had to wait 2 weeks before he returned. On his return, I rang him, explained the situation, especially on how I needed the car to attend my doctor's appointments and as a result of not having a car, I missed 3 appointments and had to delay an operation as I could not afford to pay my doctor. In short, he told me where to go and threatened me telling me "to come down and see him and he will sort me out".

Let's say he just waved a red flag in front of a bull.

I then informed him that I would take the following course of action.

1. I would make posts all over social media telling my story and advising followers not to use the business as they employed an unscrupulous person and to ring the business and either a) waste the business' time by asking salespersons questions about their products with no intent of making a purchase or b) demanding they refund on my behalf.

It is not illegal to post my story online, I will not encourage others to threaten or abuse both the business and its employees including the person who sold me the car. I cannot help it if some nutter wished to take it further. I will not encourage or condone it. I am just telling my story.

I was threatened by the business that they would sue me if I slandered them over the internet. My response being it is only slander if it is not the truth and what part is not the truth? The car was advertised on the property of their business. I went inside their business and paid an employee of their business. I have every right to name their business.

Bring it on, I say. So far, I haven't made a post as yet.

2. I would ring every 5 - 20 minutes demanding a refund, or ask stupid questions, tell them I rang the wrong number and hang up or simply ask, "how is your day going?"

Basically, the logic being if I am going to lose my money, I will ensure you lose it 10 fold via other means. The aim being the business loses money due to my time wasting with them either pressuring their employee to either refund my money or them to sack him for being a liar for me to stop.

I commenced this phase last Friday and continued today. I now have been threatened that if it continued that they will go to police tomorrow and have me charged. I ask what can I be charged for under Criminal Law?

I have not abused, threatened, blackmailed or extorted anything.

Thanks in advance for your assistance.

 

[AllForHer]

Hmm.

Should you take the immature path that might see you subject to an action for defamation and harassment?

Or, should you take the civil liabilities option and actually try and get the situation with the car properly sorted through the correct avenues?

I see you've taken the defamation/harassment path.

See 545B of Crimes Ac 1900 (NSW). Also see s 474.17 of Criminal Code Act 1995 (Cth).

 

[Hany Salama]

Hmm.

Should you take the immature path that might see you subject to an action for defamation and harassment?

Or, should you take the civil liabilities option and actually try and get the situation with the car properly sorted through the correct avenues?

I see you've taken the defamation/harassment path.

See 545B of Crimes Ac 1900 (NSW). Also see s 474.17 of Criminal Code Act 1995 (Cth).

Thank you for the reply. I do realise it is the immature path but taking civil action is costly which I cannot afford and there are with no guarantees of success.

I am not worried about the defamation aspect as this is civil and not a criminal matter. It will cost them to instigate action if possible as I will not say or print anything not truthful. I have been down this path about 15 years ago and put a major building companies barrister to shame when he threatened me with a similar fate. I am a nobody and even I know it is not defamation if it is the truth especially when you have a witness to the event.

Even if I lost, a civil case it is not jail-able. At nearly 60 years of age having had a stroke 12 months ago and with both with cardiac and vascular health issues, no family or assets, what are they to get? Worst case, I declare bankruptcy. My days are limited so bankruptcy is not an issue.

As my father would say "the law is like a rubber band, you can stretch it but do not break it"

Now looking at the criminal aspect - Crimes Act 1900 - Sect 545B

Intimidation or annoyance by violence or otherwise.

Firstly, I am not intimidating or annoying by violence, in fact, I have not threatened anybody, sworn or done anything threatening on the contrary I am the one that has been threatened and abused. The "or otherwise" is interesting in that it is a long bow in that in context one assumes it relates to harm.

I am not compelling any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing. They can still carry on with their business. I will not do anything preventing them from carrying on with business. I am only phoning them demanding a refund which I assume is a buyers right. I did not realise it is illegal to wish somebody a good day at which point they hang up before I get a chance to say anymore or even so to say ring a wrong number and hang up before somebody answers? I would assume not.

As to "wrongfully and without legal authority", which of the points have I broken?

As for 474.17 Using a carriage service to menace, harass or cause offence

(1) A person is guilty of an offence if:

(a) the person uses a carriage service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

A reasonable person would consider a demand for refund a reasonable request. The phone calls are not offensive nor menacing, I guess we are down to what constitutes harassing.

There are many websites that ask users to ring politicians, businesses and the like to make complaints etc. Their switchboards go into meltdown.

Why is it any different for my followers to do same? They have the right to make complaint on my behalf. It is up to the business how they handle the mass of complaints.

There are many ways to play the game. You cannot go out suing everybody who makes a bad review of a business. This is the internet world we live in, it is full of bad reviews of products, businesses and services.

Bottom line - what are the chances of beating the charges should it go down this path?

Thanks

 

[AllForHer]

Harassment is constituted by a high volume of unwanted contact, not just offensive words or menacing tones of voice. It's also not just the business you're harassing, it's the individuals, and their right to feel safe and live free from harassment prevails even while they are at work. Your desire to save money on legal fees does not supersede the rights of others to live peacefully.

Correct way to pursue remedy is to contact the ACCC and file a complaint so they investigate on your behalf.

 

[Serge Gorval]

Why on earth are you going through criminal law?

Your question was somewhat confusing. Was the car purchased from the car dealer or privately and the seller happened to be an employee of the dealer ?

The above is important.

If purchased from the dealer, then you have a 3-month statutory guarantee. Also if purchased from a business, you are protected by Australian Consumer Law.

Please provide more info.