topic Re: Australia Post Legal Question in Selling

Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 06:11:59 GMT

Common Law provides us with a postal rule in Adams v Lindsell which says that once a letter of acceptance is posted that it is deemed accepted and not reliant on the acceptance being communicated to the offerror. (sic) (usually, acceptance must be communicated).

That being, it stands to reason that ownership of the letter must pass from the sender to the receiver at the point of postage.

Two questions arise from this;

1) Once posted (either lodged over counter or placed in a designated mail box), the sender should not be able to retrieve the letter/package, as they no longer own it.

What is the actual ruling on this? Can a sender retrieve a postal item after mailing it?

2) In eBayland, The buyer usually/technically pays for the postage, and the seller is merely the agent charged with performing the act. However, despite the buyer paying for the service to have an item that legally belongs to them delivered, why is it that Australia Post will not allow the buyer to make enquiries about that parcel if, for example, it gets lost in the post?

It is my understanding, that the seller must lodge any complaint/claim (which does make sense as they would have the paperwork), but then the buyer is reliant solely on communication from the seller.

So, why is it that the legal owner of the postal item, who paid for the delivery service is prevented from making enquiries or instigating investigations as to its whereabouts?

Re: Australia Post Legal Question

smartway-2-buy — Mon, 26 Aug 2013 08:45:17 GMT

I don't know about the legalities of what you are saying but I can assure you that a buyer has every right to lodge an enquiry with Australia Post regarding a missing item. If they have the tracking number then they can even go on the Australia Post website and see the record of posting etc. If an item goes missing you simply ring 131318 and lodge an enquiry in to the missing item and this will result in an e-mail being sent to the last known position of the item to try and track it down.

Australia Post is forever getting parcels and letters with an incorrect address and this is usually the problem.

Either the buyer supplies incorrect information or the sender puts the wrong details down.

Another problem is buyers who have an item to pick up at an LPO often fail to do so and this results in the item being returned to sender PROVIDED there is a return address.

If not and the sender is impossible to trace then the item could be sold as lost property as a last resort.

Items are returned all the time simply because the buyer doesn't bother to go and collect it.

Then they deny getting any notification that the item is awaiting collection.

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 08:57:40 GMT

Cut and paste from Postal Industry Ombudsman website explains it pretty well....

Generally speaking, the addressee is the one who claims for damage to a mail item. This includes where an item has arrived, but the contents are missing. Where the item is lost the sender is the one to claim.

The logic behind this approach is that where an item disappears, the sender is in the best position to confirm that it was indeed posted, and also the sender paid for the postage so it is the service they paid for that failed. The addressee may also have a right, in a commercial transaction, to require the sender to replace the item.

If the item is delivered, it may reasonably be considered to have become the responsibility of the addressee, so if it is damaged, the addressee can claim compensation.

The person with primary entitlement to claim compensation can usually transfer their right to claim to the other party in writing. For example, the addressee of a damaged item can transfer their right to claim to the sender. This is not the case for certain international mail services.

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 09:05:45 GMT

A sender can give their authorisation to Aust Post over the phone, or by email, for an addressee to make enquiries about a lost parcel investigation.

AP can't say no, it is in their overall terms and conditions - same as the discretionary $50 compensation is too

If you are getting Aust Post reps saying it is not so, just request to speak to a team leader, or the escalation team, that usually sorts it out.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 11:05:34 GMT

@thecatspjs wrote:
Cut and paste from Postal Industry Ombudsman website explains it pretty well....

Generally speaking, the addressee is the one who claims for damage to a mail item. This includes where an item has arrived, but the contents are missing. Where the item is lost the sender is the one to claim.

The logic behind this approach is that where an item disappears, the sender is in the best position to confirm that it was indeed posted, that makes sense, as I said....and also the sender paid for the postage only physically, in most cases the buyer paid and the sender is merely the agent....so it is the service they paid for that failed. The addressee may also have a right, in a commercial transaction, to require the sender to replace the item. So, if Australia Post loses the parcel, the seller may be obliged to replace the item? That doesn't make sense.

If the item is delivered, it may reasonably be considered to have become the responsibility of the addressee, so if it is damaged, the addressee can claim compensation. So if the buyer gets it it and it is broken, the buyer instigates a claim for compensation. I didn't know that, but it of course makes sense.

The person with primary entitlement to claim compensation can usually transfer their right to claim to the other party in writing. For example, the addressee of a damaged item can transfer their right to claim to the sender. This is not the case for certain international mail services.

OK, thanks CatsPJ, see to me that contradicts of the guidelines of the law, I wonder when ownership is deemed to have exchanged hands?

If I borrow grandma's car and I pay Johnny to return it for me cos I'm a slack unappreciative grandaughter, and Johnny somehow loses the car on the way (stolen whilst he stopped at Maccas for a burger), then it is grandma who raises the claim with her insurers, not the person who sent it.

I know I'm missing an important point there, not sure what though....

The person who owns the item is the one who raises the claim.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 11:09:03 GMT

thanks so much for your really informative answer smartways. (Hello by the way, your post count tells me you are new here - the smileys really suck, but the rest of the place is pretty cool, so hope to see you around often 🙂 )

I never knew that AP sold lost property, but that makes sense I guess, as I know the police do.

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 11:36:37 GMT

Ownership of goods is not always so straightforward either as under the AP Act there is a clause that indicates that in particular situations that AP will be considered to be the owner - I assume to support their power to confiscate goods LOL ...

101 Articles carried by post to be taken to be Australia Post’s property

For the purpose of any legal proceeding or action in relation to an article carried by post or under the control of Australia Post, the article shall be taken to be, while it is being carried by post or under the control of Australia Post, the property of Australia Post.

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 11:43:52 GMT

The Sale of Goods Act provides direction on ownership transfer and freight.

Once sold - unless otherwise agreed, the seller is responsible for shipping goods to the owner in accordance with their instructions - or in the absence of specific freight instructions, shipped in a manner that is appropriate to the type and value of goods being shipped.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 11:44:00 GMT

Hey, I never knew there was an Australia Post Act!

Thanks for that!

*goes off to google*

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 11:50:23 GMT

@thecatspjs wrote:
Ownership of goods is not always so straightforward either as under the AP Act there is a clause that indicates that in particular situations that AP will be considered to be the owner - I assume to support their power to confiscate goods LOL ...

101 Articles carried by post to be taken to be Australia Post’s property

For the purpose of any legal proceeding or action in relation to an article carried by post or under the control of Australia Post, the article shall be taken to be, while it is being carried by post or under the control of Australia Post, the property of Australia Post.

I think that answers one of my questions - it would seem from that, that whilst an item is in transit, it is deemed to be the property of Australia Post, therefore the sender cannot retrieve the item.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 11:53:05 GMT

@thecatspjs wrote:
The Sale of Goods Act provides direction on ownership transfer and freight.

Once sold - unless otherwise agreed, the seller is responsible for shipping goods to the owner in accordance with their instructions - or in the absence of specific freight instructions, shipped in a manner that is appropriate to the type and value of goods being shipped.

how does this transfer ownership? Doesn't this just transfer posession?

The shipping makes sense and is as I expected.

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 11:58:00 GMT

Sorry, I was thinking with my business hat on re SoG Act, I think it is probably more relevant for business and trade purchases - as there are some limits and exclusions from coverage for a number of personal purchases.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 12:04:43 GMT

Section 27 4b

27 Community service obligations

(1) Australia Post shall supply a letter service.

(2) The principal purpose of the letter service is, by physical means:

(a) to carry, within Australia, letters that Australia Post has the exclusive right to carry; and

(b) to carry letters between Australia and places outside Australia.

(3) Australia Post shall make the letter service available at a single uniform rate of postage for the carriage within Australia, by ordinary post, of letters that are standard postal articles.

(4) Australia Post shall ensure:

(a) that, in view of the social importance of the letter service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(b) that the performance standards (including delivery times) for the letter service reasonably meet the social, industrial and commercial needs of the Australian community.

Section 28c

28C Performance standards to be met by Australia Post

(1) The regulations may prescribe performance standards (the prescribed performance standards) to be met by Australia Post.

(2) The prescribed performance standards must relate to:

(a) the frequency, speed or accuracy of mail delivery; or

(b) the availability or accessibility of:

(i) post‑boxes or other mail lodgement points; or

(ii) offices of Australia Post or other places from which Australia Post products or services may be purchased.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 12:07:08 GMT

This is interesting (to me anyway LOL)

I wonder if this means that the corner store is not allowed to onsell postage stamps? I know around here, a few do, as do post offices...

29 (3) Australia Post also has the exclusive right to issue postage stamps within Australia.

How also does this transpose for the Phillatelists who sell and trade on eBay?

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 12:10:37 GMT

@thecatspjs wrote:
Sorry, I was thinking with my business hat on re SoG Act, I think it is probably more relevant for business and trade purchases - as there are some limits and exclusions from coverage for a number of personal purchases.

Please, don't be sorry, I'm loving the info to bounce off. Eventually it has to either lead me to the answers or inspire other ways to find them. So keep it coming! Eventually I will find the golden thread I need to pursue my line of questioning.

I'll definitely be looking through the SOG Act in the next few days, it's been a year or so since I've dealt with it, so the refresher course will help.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 12:12:37 GMT

@crikey*mate wrote:
This is interesting (to me anyway LOL)

I wonder if this means that the corner store is not allowed to onsell postage stamps? I know around here, a few do, as do post offices...

29 (3) Australia Post also has the exclusive right to issue postage stamps within Australia.

How also does this transpose for the Phillatelists who sell and trade on eBay?

30A Enforcement for infringement of reserved services

(1) A person shall not engage in conduct that involves an infringement of Australia Post’s exclusive right to undertake the reserved services.

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 12:18:47 GMT

Not sure what your looking for but if my random bits n pieces help ... all good.

Bit scatty this evening,

Doesn't transfer of ownership occur when the conditions of a sale contract have all been met. So when paid and posted.

So for sellers I would think that would be when they have delivered the goods to a carrier for freight to the buyer.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 12:20:59 GMT

COMPENSATION

34 Immunity from certain actions

(1) An action or proceeding does not lie against Australia Post or any other person in relation to any loss or damage suffered, or that may be suffered, by a person because of any act or omission (whether negligent or otherwise) by or on behalf of Australia Post in relation to the carriage of a letter or other article by means of the letter service.

(2) Subsection (1) does not apply if Australia Post provides the sender with a receipt for the article.

...............................................

So by supplying a receipt at lodgement, this says that Aus Post IS responsible for loss and/or damage.....

If this is so, how come Insurance is an optional extra? And why is that payment "discressionary"?

Re: Australia Post Legal Question

thecatspjs — Mon, 26 Aug 2013 12:31:05 GMT

the immunity quoted only seems to appliy to the letter service including I suppose when the postie carries a parcel to deliver it.

The PIO did a review of the "discretionary" compensation and made some recommendations years ago, as it is one of the areas they receive most complaints about.

it is worth a read as it provides interesting overview and commentary on AP reserved services and its commercial operations generally. Should come in google, or is probably buried on PIO website.

Unfortunately since that time we have seen further large strides towards user pay through the nose approach.

Re: Australia Post Legal Question

*crikey*mate* — Mon, 26 Aug 2013 12:29:54 GMT

@thecatspjs wrote:
Not sure what your looking for but if my random bits n pieces help ... all good.

Bit scatty this evening,

Doesn't transfer of ownership occur when the conditions of a sale contract have all been met. So when paid and posted.

So for sellers I would think that would be when they have delivered the goods to a carrier for freight to the buyer.

I've just got a bee in my bonnet about AP at the moment LOL

I don't understand why if I pay for a standard service of delivery, that I then also have to pay added extras to ensure that they provide the service that I've already paid for.

Curious too about ownership of an article.

On eBay, Once I finalize the contract, by Common Law, the article now belongs to the buyer, even though it is still in the posession of the seller - that's just geography.

In an insurance claim, it is the owner who must raise the claim.

I've also gone off on the tangent about sellers who accidentally post goods before payment is received - ie, can they take the item back once they have posted it - as technically, they breach the law by witholding the article from the true owner. As even though they haven't been physically paid, the promise to pay is all that is required to form a contract, so the seller is obliged to supply the item, but then if no money is received, they correct course of action is for them to raise a case for payment. It is two seperate cases.

This also effects the return of goods for refund and the processes that PayPal and eBay have in place and instruct us to do.