Repealed and replaced by Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)

Application

Schedule 10 of the Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017) provides that:

The amendment made by this Schedule applies in relation to findings of fact, and admissions of fact, made on or after the commencement of this item.

Immediately prior to the replacement, s 83 took the following form:

83 Finding in proceedings to be evidence

In a proceeding against a person under section 82 or in an application under subsection 51ADB(1) or 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C, 86D or 86E, or for an offence against section 44ZZRF or 44ZZRG, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, or of section 55B, 60C or 60K, is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.

The change follows recommendations made as part of the Harper Review.

The Explanatory Memorandum explained the change as follows:

10.1 Schedule 10 to this Bill extends section 83 of the Act so that a party bringing certain proceedings may rely on both admissions of fact and findings of fact made in certain other proceedings.

10.2 Consumers or businesses harmed by a contravention of the competition law can seek relief by commencing a private action before the Federal Court (for example, a person may commence an action for damages under section 82).

10.3 Section 83 of the Act is intended to facilitate private actions by enabling findings of fact made in certain proceedings against a corporation to be used as prima facie evidence against that corporation in certain other proceedings. For example, if the Commission brings an action against a corporation seeking pecuniary penalties under section 77 or an injunction under section 80 for a contravention of the Act, and during that proceeding the court makes a finding of fact, that finding may be relied upon by a person later bringing a private action.

10.4 This mechanism helps to reduce the cost of private actions, as a person relying on a previous finding of fact as prima facie evidence does not need to establish that fact.

10.5 Many proceedings brought by the Commission are resolved by a corporation making admissions of fact that establish the contravention. However, it is uncertain whether section 83 also applies to admissions of fact, and the extent to which litigants in subsequent proceedings may rely on these admissions.

10.6 The Harper Review noted this lack of clarity was an impediment to the right to private enforcement of the competition law, and recommended amending section 83 to clarify that it applies to admissions of fact as well as findings of fact. This would enhance the effectiveness of section 83 as a means of reducing the cost of private actions, and thereby facilitating access to justice.

10.7 Schedule 10 amends section 83 so that a party bringing certain proceedings (such as an action for damages under section 82) may rely on both admissions of fact and findings of fact made in certain other proceedings (such as an action by the Commission seeking pecuniary penalties under section 77 or an injunction under section 80).

Substituted by Trade Practices Amendment Act 1977 (Act 81 of 1977) s 50

50. Sections 81, 82 and 83 of the Principal Act are repealed and the following sections substituted:

...

'83. In a proceeding against a person under section 82 or in an application under sub-section 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 80A or 81, or for an offence against section 79, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV or V is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.'.

Original provision

83. In proceedings against a person under section 82, a finding of any fact by the Court made in proceedings under section 77, 80 or 81, or for an offence against section 79, in which that person has been found to have contravened a provision of Part IV or V is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.