4.1 The Disposal of Uncollected Goods Act 1966 was designed to provide a general remedy for all bailees in possession of uncollected goods. It has not done this effectively and the gaps it leaves are not filled adequately either by the common law or by the specific legislation designed to regulate those businesses and industries whose members may become bailees. The Commission does not believe that further reform can be left to be achieved by the development of case law. Legislation will be necessary.
I. THE ACT IS INCOMPLETE
4.2 The Disposal of Uncollected Goods Act does not cover all the problems that can arise. It is directed specifically at bailees for reward who take possession of goods for treatment or repair. These bailees are offered two alternative remedies: a right of sale after giving the requisite statutory notice, or a right of sale by court order. All other bailees for reward must obtain a court order before selling. The distinction between bailments for repair and treatment and other bailments for reward was made originally to give those bailees who at common law had a lien over the goods (namely bailees whose possession of the goods was linked to their improvement, repair or a debt owed on them)1 a simple way of disposing of the goods, as no power to dispose of them attached to either the bailment or the lien at common law. Because of their lien they were to be permitted to dispose of the goods without incurring the costs and delay of court proceedings. The attempt at simplicity and economy failed, however, because the Act imposes a complex and expensive procedure for the giving of notice which is little improvement on the court process.
4.3 Another problem with the current legislation is its failure to provide adequately for gratuitous bailees. Reference has already been made to the poor drafting and ambiguity of s10(1)(c).2 The nebulous position of Involuntary bailees, both at common law and under this Act, is also unsatisfactory.3 The difficulties at common law have already been examined,4 and s10(1)(c) does not resolve the problem because it requires an acceptance of the goods before the Act can apply.5 The largest group of involuntary bailees, those who come into possession of goods as landlords, will be given a remedy under the Residential Tenancies Act 1987, but others remain outside the Act.6 They should be provided with a remedy.
II. NEED FOR A “GENERAL” ACT
4.4 The Commission’s investigations have shown that in many cases where goods are left unclaimed, remedies are provided by legislation other than the Disposal of Uncollected Goods Act. In Chapter 3 we noted that this separate legislation is often part of a larger scheme relating to a specialised area of law or business practice. The Pawnbrokers Act 1902, which regulates the entire operation of pawnbroking businesses, provides pawnbrokers with a right to sell uncollected goods. The State Transport Regulations deal with property found on public vehicles, and landlords are to be provided with remedies under the Residential Tenancies Act 1987.
4.5 There are also cases which would not be properly dealt with under disposal of uncollected goods legislation. For example, where someone takes possession of goods believing them to be their own,7 the matter will usually be resolved by reference to the general law of property. Similarly the law relating to agency of necessity8 stems from problems relating to carriage of goods, and their spoilage en route. In neither of these cases is the central question a failure by the owner to collect the goods.
4.6 The Disposal of Uncollected Goods Act does not cover all bailees of uncollected goods. Its failure to do so raises the question of whether a general approach is the most effective method of dealing with the matter. As the circumstances regulated by the legislation are so varied, the matter may be dealt with most successfully by legislation specific to the circumstances under which the goods remain uncollected. if this view were adopted the functions of the Disposal of Uncollected Goods Act would be fourfold:
(i) to continue to provide remedies for bailees for reward whose bailment Is for the Improvement or repair of the goods or for the discharge of unpaid debts attaching to them;
(ii) to continue to provide a procedure for sale for other bailees for reward;
(iii) to make remedies available to gratuitous bailees, including involuntary bailees, who have none at present; and
(iv) to offer safeguards to those bailees currently thought to have been brought within the terms of legislation covering specific industries and businesses, but who may, through unforeseen gaps in the legislation, be left without remedies.
The aim would be to provide simple and easily accessible s for the sale of uncollected goods, while retaining the right of the parties to contract out of the Act and make their own agreements under s16.
III. THE TERM “BAILMENT” IS UNRELIABLE
4.7 The use of the term bailment in the Act is a major stumbling block to its smooth operation. Most of the problems have already been dealt with in detail and need only be noted here:
(i) Vagueness and uncertainty surround th concept of bailment. The law of bailment i very old, and the rights and duties which th law provides have never been clearl defined. This is especially so in relation to involuntary bailment.
(ii) The difficulties caused by the use S10(1)(c) of the terms “bailment” “contract” together.
(iii) The failure to accommodate those possession of uncollected goods who cannot be characterised as bailees because the Act is based on principles of bailment.
IV. CUMBERSOME PROCEDURES
4.8 When the costs of complying with the notice provisions, or of instituting proceedings in court, are compared with the value of most of the goods involved, the remedies provided appear illusory. Most often the goods are second-hand, in need of repair and hardly justify the long periods of storage, the recordkeeping and procedures for separate sale at public auction required by the Act. The Act fails to take account of the wide variety of goods involved by offering only one type of remedy no matter what the nature or value of the goods.
FOOTNOTES
1. Discussed 2.13 above. Second Reading speech, the Honourable J Maddison, then Minister for Justice, on 1 December 1966 in the Legislative Assembly, NSW Parliament, Parliamentary Debates (NSW Hansard) Vol 65 at 3069.
2. See Chapter 2, 2.25-2.27.
3. Id 2.6-2.10.
4. Id 2.5.
5. Id 2.25-2.27.
6. Discussed Chapter 2, 2.6-2.10.
7. This is one of the examples given by the Tasmanian Law Reform Commission in its report The Disposal of Uncollected Goods (TLRC No 23, 1978) at 5.
8. Discussed Chapter 2, 2.15.
