George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

by leave—The opposition opposes item 3 of schedules 1 and 2 and items 1 to 4 and 9 to 11 of schedule 3:

(2)    Schedule 1, item 3, page 3 (lines 17 and 18), item TO BE OPPOSED.

(5)    Schedule 2, item 3, page 5 (lines 17 and 18), item TO BE OPPOSED.

(7)    Schedule 3, items 1 to 4, page 7 (lines 5 to 12), items TO BE OPPOSED.

(8)    Schedule 3, items 9 to 11, page 8 (lines 1 to 6), items TO BE OPPOSED.

This is the part of the Trade Practices Legislation Amendment Bill 2008 which proposes to vest the Federal Magistrates Court with jurisdiction to hear section 46 cases. If I might briefly repeat what I said in my speech on the second reading, it is said on behalf of the government that this is a desirable course of action because it will reduce the cost of such proceedings. As I understand it, that is the only basis put forward by the government to argue that it is desirable to extend the jurisdiction of the Federal Magistrates Court in this respect. It is very simple: the assertion that by transferring the forum in which these cases are heard you will reduce the cost of the cases is simple-minded and indeed ludicrous.

It does not matter whether the case is being litigated in the Federal Court or in the Federal Magistrates Court: these cases, under section 46—and if I may say so, I suspect that I am the only person in the Senate to have run one or more of them—are very complex cases. It is not as if there are two categories of section 46 cases, the hard ones and the easy, low-budget ones.

The legal issues are complex. The factual issues are complex. Unlike most legal proceedings, they involve not only difficult issues of law but also difficult issues of economics and they necessarily involve extensive evidence from forensic economists about market definition and issues such as market share, barriers to entry and so on. It is simple-minded to think that you could have an easy section 46 case that can be knocked over in a couple of days in the Federal Magistrates Court and the harder section 46 cases that might take several weeks in the Federal Court. They are all long cases; they are all complex cases. The complexity of the issues is common, regardless of the monetary value at stake, as a matter of fact, because the issues of market definition, market share, barriers to entry and the other aspects of the economic evidence in particular do not change. So the complexity of the proceedings is unaffected by the forum. The length of the proceedings is unaffected by the forum. On the cost of the proceedings, to the extent to which most of the costs incurred in conducting litigation are the professional costs of counsel, solicitors and expert witnesses, the professional costs are going to be the same, regardless of what forum you conduct those proceedings in.

The risk that I see, were this amendment to be passed, is that section 46 cases might be commenced in the Federal Magistrates Court in the mistaken view that perhaps they would be swifter there, whereas in fact they could potentially be longer. The reason that they could potentially be longer is that the Federal Court now has a body of experience and expert knowledge in this particularly arcane area of the law and it also has long experience in conducting complex trials.

The Federal Magistrates Court, with all due respect to the federal magistrates, who are all good men and women, has no such body of expertise in this area and has no such equivalent body of experience in conducting complex commercial litigation. Eighty-five per cent of the work of federal magistrates is in fact Family Court work. In the entire federal magistracy, I can think of one federal magistrate who has a background in this field.

As a matter of commonsense, most people would understand that, if you have a complex matter dealt with by a jurisdiction with no experience and familiarity with its complexities, it is going to take longer and therefore be more costly than if you have that matter dealt with by a specialist, expert court which knows how to do it because it is practised in dealing with such arcane and complex matters. If the argument put forward by the government is that it will save money—which is the argument put forward by Senator Sherry—it will not. It will cost the litigants more. That is why the opposition opposes these measures.