Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law in relation to the costs of actions taken by persons who suffer loss or damage as a result of breaches of the Competition and Consumer Act 2010, and for related purposes
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Registered 16 Feb 2017
Introduced Senate 16 Feb 2017
Table of contents.

2016‑2017

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Competition and Consumer Legislation Amendment (Small Business Access to Justice) Bill 2017

 

No.      , 2017

 

(Senator Gallagher)

 

 

 

A Bill for an Act to amend the law in relation to the costs of actions taken by persons who suffer loss or damage as a result of breaches of the Competition and Consumer Act 2010, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Australian Small Business and Family Enterprise Ombudsman Act 2015               3

Australian Small Business and Family Enterprise Ombudsman Act 2015       3

Schedule 2—Competition and Consumer Act 2010                                          6

Competition and Consumer Act 2010                                                                     6

 

 


A Bill for an Act to amend the law in relation to the costs of actions taken by persons who suffer loss or damage as a result of breaches of the Competition and Consumer Act 2010, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Competition and Consumer Legislation Amendment (Small Business Access to Justice) Act 2017.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Australian Small Business and Family Enterprise Ombudsman Act 2015

  

Australian Small Business and Family Enterprise Ombudsman Act 2015

1  At the end of section 7

Add:

            ; and (h)  conduct within the meaning of the Competition and Consumer Act 2010.

2  At the end of section 15

Add:

                   ; (c)  to give assistance under Division 3A of Part 4 in advising on and preparing a person’s case for a no adverse costs order under subsection 82(4) of the Competition and Consumer Act 2010.

3  After subparagraph 23(h)(ii)

Insert:

                           (iia)  assistance being given under section 74B (assistance in relation to a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of the Competition and Consumer Act 2010);

4  At the end of section 65

Add:

                   ; (g)  conduct, within the meaning of the Competition and Consumer Act 2010, that:

                              (i)  may be in contravention of a provision of Part IV of that Act; and

                             (ii)  affects, or may affect, a small business or family enterprise.

5  After Division 3 of Part 4

Insert:

Division 3AAssistance where there may be a contravention of the Competition and Consumer Act 2010

74A  Application of this Division

                   This Division applies if the relevant action in relation to which a person requests the Ombudsman to give assistance is conduct, within the meaning of the Competition and Consumer Act 2010, that:

                     (a)  may be in contravention of a provision of Part IV of that Act; and

                     (b)  affects, or may affect, a small business or family enterprise.

74B  Ombudsman may give assistance in relation to costs order

             (1)  The Ombudsman may assist the person by doing either or both of the following:

                     (a)  advising the person on the arguments that might be made, and the evidence that might be adduced, to satisfy a court that an order under subsection 82(4) of the Competition and Consumer Act 2010 should be made (a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of that Act);

                     (b)  preparing arguments that might be made in satisfying a court that an order under that subsection should be made.

             (2)  Nothing in this section limits the functions, duties and powers of the Ombudsman under this Part in relation to the relevant action.

6  At the end of Division 2 of Part 5

Add:

91A  Disclosure for the purposes of a no adverse costs order under the Competition and Consumer Act 2010

             (1)  This section applies if the relevant action in relation to which a person (the applicant) requests the Ombudsman to give assistance is conduct, within the meaning of the Competition and Consumer Act 2010, that:

                     (a)  may be in contravention of a provision of Part IV of that Act; and

                     (b)  affects, or may affect, a small business or family enterprise.

             (2)  A person assisting small business/family enterprise may disclose to the applicant any document or information obtained by the person assisting small business/family enterprise in the course of performing functions or duties, or exercising powers, in relation to assistance given to the applicant under section 74B.

Note:          Section 74B allows the Ombudsman to give assistance in relation to a no adverse costs order in proceedings to recover the amount of any loss or damage as a result of contraventions of the Competition and Consumer Act 2010. This assistance may include advising the applicant on the arguments that might be made, and the evidence that might be adduced, in pursuing a no adverse costs order, and preparing arguments.

Schedule 2Competition and Consumer Act 2010

  

Competition and Consumer Act 2010

1  At the end of section 82

Add:

No adverse costs orders

             (3)  A person who brings an action under subsection (1) in relation to a contravention of a provision of Part IV may at any time during proceedings on the matter seek an order under subsection (4) from the court hearing, or that will hear, the matter.

             (4)  The court may order that:

                     (a)  a respondent in the proceedings is liable for any of its costs in relation to the proceedings; or

                     (b)  two or more respondents in the proceedings are jointly and severally liable for any of their costs in relation to the proceedings.

             (5)  The court may only make an order under subsection (4) if the court is satisfied that:

                     (a)  the action has a reasonable prospect of success; and

                     (b)  the action raises an issue that is not only significant for the applicant, but may also be significant for other persons or groups of persons; and

                     (c)  the disparity between the financial position of the applicant and the financial position of the respondent or respondents is such that the respondent or respondents could use the possibility of a costs order that does not favour the applicant as a means to deter the applicant from pursuing the action.

             (6)  A person who appeals a decision of the court under section (4) is liable for any costs in relation to the appeal.

2  Application

The amendment made by this Schedule applies in relation to actions under subsection 82(1) of the Competition and Consumer Act 2010 brought on or after 1 July 2017.