George Brandis (Queensland, Liberal Party, Minister for the Arts and Sport) Share this | Hansard source

The government does not support opposition amendment (7), although I find myself a little embarrassed because the government senators in the 2004 report were rather persuaded to that view. Nevertheless, it does involve a very narrow point. You do not define substantive proceedings, Senator Sherry, through you, Madam Temporary Chair. What I take that you mean by substantive proceedings is the proceedings from the time after which an action has commenced by the filing of an application. As you would be aware, Senator, the Federal Court held as long ago as 1980, in Brambles Holdings and the Trade Practices Commission, that once an action had been commenced under part IV then that was the end of the section 155 powers. There is a reason for that, and that is that under the Federal Court rules there are a suite of interlocutory proceedings including discovery, interrogation, the exchange of witness statements and so on which deal with the matter.

The only occasion on which your amendment might operate is in the very narrow and limited circumstances contemplated by the ACCC in its submission at paragraph 5.27 of the 2004 report, where the ACCC was seeking in a very urgent case an interim injunction—that is, an injunction sought before the substantive application had been filed—and it sought to augment that with section 155 powers as well. That very seldom happens, and one would imagine that the only case in which one would seek an interim injunction, as opposed to an interlocutory injunction after the filing of an application, would be in circumstances of such extreme urgency that there would not be time for there to be a section 155 examination usefully conducted in any event. So I think, theoretically, you may be right, Senator Sherry, but it is the government’s view that, given the almost theoretical narrowness of the circumstances in which the amendment would have any operation, it is scarcely worth doing.

I will now reply to Senator Sherry’s final amendment, the amendment to include matters arising under section 46 within the jurisdiction of the Federal Magistrates Court. The reason you advance—that this would make proceedings under section 46 much less expensive for small business—is illusory. Section 46 proceedings are extremely complicated. Not only do they involve a large amount of factual evidence but they also invariably involve a large amount of expert economic evidence. There have only been a few dozen section 46 cases in the 33-odd years since the Trade Practices Act has been in operation, and you do not get more complicated litigation than a section 46 case, frankly. You would need the same evidence, the same witnesses and the same experts to prove a section 46 case in the Magistrates Court as you would in the Federal Court, so you would not save any money at all. But what you would have is this extremely complicated sort of litigation being adjudicated, with all due respect to the Federal Magistrates Court, by less senior judicial officers. And that is also why the government is of the view that section 46 cases should only be dealt with by the senior federal judicial officers—that is, in the Federal Court of Australia in its sitting as a trial court.

The point that you make about recovery of damages under section 83, Senator Sherry, is a fair point. However, I do not think your amendment would achieve that either. You say in your amendment that it has to be a matter arising under section 46, but there is a great deal of rather arcane law about whether a proceeding to recover damages based on findings of fact under section 83 are proceedings under section 46 or fresh proceedings under section 83. So for those several reasons I do not think amendment (7) meets the mischief that you identify.