Section 83
Findings and admissions of fact in proceedings to be evidence

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.

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 Sections 81, 82 and 83 of the Principal Act are repealed and the following sections substituted: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

Amended by Competition and Consumer Amendment (Payment Surcharges) Act 2016 (Act 9 of 2016)

Inserted references to s 55B

Repealed and replaced by Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)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

Ian Wylie, 'When too much power is barely enough – section 155 of the Trade Practices Act 1974 and noblesse oblige' (2009) 16 Competition and Consumer Law Journal 314

[page 316] ... The provision ostensibly makes it easier for individual consumers to obtain redress in claims following on from successful ACCC action. However, the case law which has developed around s 83 has limited its utility. ...

... the weight of authority is to the effect that the section only covers findings made after a hearing ...'

ACCC v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265

Justice Goldberg

'SECTION 83

[para 114] The Commission initially applied for orders pursuant to s 83 of the Act. ...

[para 116] Where parties submit an agreed statement of facts, it may not be appropriate to regard formal admissions as findings of fact for the purposes of s 83. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) [ [2002] FCA 559], Finkelstein J stated (at 183-184):

"The general rule is that formal admissions are only binding for the purpose of the particular case in which they are made: Dawson v Great Central Railway (1919) 88 LJKB 1177 at 1181-2. It is not clear whether a judge who acts on formal admissions is making findings of fact. I rather think he is not, because the purpose of an admission, such as may be made in a pleading, is to dispense with the need to prove the admitted fact. That is quite different from a case where the judge hears evidence and makes findings based on that evidence."

[para 117] In Australian Competition and Consumer Commission v Monza Imports Pty Ltd (2001) ATPR 41-843 Carr J did not make findings of fact for the purpose of s 83 on the basis that the facts had not been established and tested before the Court. At 43,440 he stated:

"I am inclined to the view that the Parliament intended ‘... a finding of any fact by a court ...’ to mean a finding made after a hearing. The apparent purpose of the provision is to save inconvenience and expense in requiring a matter to be proved more than once, but at the same time protecting the interests of a respondent by conferring on such a finding only the status of prima facie evidence in subsequent proceedings."

Carr J made similar comments in a related proceeding: Australian Competition and Consumer Commission v Apollo Optical (Aust) Pty Ltd [2001] FCA 1456.

[para 118] Even if these statements were not correct, it would seem, as a matter of principle, that where evidence has not been tendered, but the parties rely upon statements of agreed facts which have not been the subject of critical analysis by the Court, it is inappropriate to make orders that would allow for an extended use of findings of fact, particularly use of those facts as prima facie evidence in related proceedings as envisaged by s 83. I therefore decline to make any orders under s 83.