Debt collection guideline: for collectors and creditors

7. Face-to-face contact

  1. We recommend that personal or ‘field’ visits generally be considered as an option of last resort. Generally, face-to-face contact should only be made if reasonable attempts to contact a debtor by other less intrusive means such as phone calls, emails or letters have failed, and face-to-face contact is considered appropriate and necessary.
  2. Where face-to-face contact is necessary we recommend that it is made at the debtor’s home when possible during reasonable hours of contact, see part 2, section 4, Hours of contact. Making face-to-face contact with the debtor at work should be the last option.
  3. Making a personal visit may be justified when a debtor refuses or fails to respond to other means of communication. Face-to-face contact may also be justified to verify the identity or location of a debtor when this is reasonably in doubt.
  4. Written communications should only refer to the possibility of face-to-face contact where such contact is genuinely being contemplated as the most likely and appropriate next step. Where contact with a debtor has been established, face-to-face contact should not be threatened as part of a demand for payment.
  5. Note—this guidance is not intended to limit otherwise legally permissible visits:
    • to sight, inspect or recover security interests
    • for the serving of legal process
    • for the enforcement of court orders by officers appropriately authorised by the relevant court.

Visiting the debtor’s home

  1. Visits to a person’s home will often raise issues about the privacy of the debtor and/or third parties. This subsection should be read in conjunction with part 2, sections 8 and 18.
  2. The following is recommended when visiting a debtor’s home:
    • Generally, do not visit the debtor’s home uninvited when it is possible to ask permission to visit the debtor. If the debtor refuses the visit, you must not visit them.16
    • State clearly to the debtor the purpose of any visit before making the visit.
    • Negotiate a mutually convenient time for the visit. Unless the debtor agrees to or specifies another time, we recommend that visiting times be consistent with the reasonable contact times set out in part 2, section 4, Hours of contact.
    • Prior to any visit, allow the debtor time to either seek advice, support, or representation from a third party.
    • Do not visit the debtor’s home if you know of special circumstances (for example, the debtor is seriously ill or mentally incapacitated) which would make face-to-face contact inappropriate. Leave the debtor’s premises immediately if you become aware of such circumstances during the visit.

CASE STUDY

A company threatened to inform the debtor’s husband about her indebtedness in circumstances where the debtor had already told the company that her husband did not know and that she did not want him to know.

The court found that the suggestion that there would be a marked car at the debtor’s house with two Sheriff’s officers, when combined with the observation that the collection officer knew that the debtor did not want her husband to know of the situation, was, in effect, a tactic by which the officer sought to intimidate the debtor and suborn her will. The conduct was held to be unduly harassing and coercive.

ASIC v Accounts Control Management Services Pty Ltd [2012] FCA 1164

  1. You must leave the debtor’s premises immediately if, at any time, you are asked to do so. As well as breaching the prohibition on undue harassment and coercion17 refusing to leave someone’s property on request is likely to constitute a breach of civil or criminal trespass laws. This applies to service or trades people claiming they are not permitted to leave a consumer’s residence without receiving payment.
  2. Whether before or after visiting a debtor, or at any other time, do not stay in the vicinity of the debtor’s home for an extended period of time or engage in any other conduct that may suggest to the debtor or a third person that the debtor or a member of the debtor’s household is under surveillance.

Visiting the debtor’s workplace

  1. Visiting a debtor’s workplace should only be undertaken as a last resort, unless the debtor:
    • is the proprietor or a director of a business to which the debt relates
    • has specifically requested or agreed to the visit.
  2. If a debtor has asked that you do not visit them at their workplace, and has provided an alternative and effective means of communication, do not visit them at their workplace.
  3. Visiting a debtor at their workplace will always involve a risk of breaching the collector’s privacy obligations to the debtor.18 Collectors will generally be asked to explain who they are and why they are visiting, and it will generally be difficult to provide an explanation without giving confidential information to third parties.
  4. Visiting a debtor at their workplace uninvited may also be seen as an attempt to put pressure on the debtor by embarrassing or threatening to embarrass them in front of work colleagues. If this is found to have occurred, such conduct is likely to constitute undue harassment or coercion of the debtor.
  5. If you do visit a debtor’s workplace:
    • under no circumstances reveal to a third party, whether directly or indirectly, that the visit is in connection with a debt19
    • under no circumstances discuss the debt in front of co-workers20
    • leave immediately if, at any time, you are asked to do so by the debtor or another person.21
  6. A visit to a debtor’s workplace should be undertaken when you know the debtor will normally be at work. If you do not know the debtor’s working hours, we recommend that you limit any visit to between 9 am and 5 pm on weekdays.
  7. Whether before or after visiting a debtor, or at any other time, do not stay in the vicinity of the debtor’s workplace for an extended period, or engage in any other conduct that may suggest to the debtor or a third person that the debtor is under surveillance.

16If you enter the debtor’s premises when instructed not to do so, you risk breaching civil or criminal trespass laws. This is further discussed in Part 3.

17In Victoria, the failure to leave a person’s private residence when requested to do so is prohibited under s. 45(2)(d) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

18 See part 2, section 8, Privacy obligations to the debtor and third parties.

19 ibid.

20 ibid.

21 If you do not leave the debtor’s workplace when asked to do so, you risk breaching tort and/or criminal trespass laws. Also, in Victoria, the failure to leave a person’s workplace when requested to do so is prohibited under s. 45(2)(d) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

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