Craig Kelly (Hughes, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) as circulated in my name together:

2019-2020-2021

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021

(Mr Kelly)

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Page 14 (after line 26), at the end of the Bill, add:

Schedule 2 — Triple damages for con traventions of Australian Consumer Law

Corporation Act 2001

1 After Part 9.4AAA

Insert:

Part 9.4AAB — Triple damages for contraventions of Australian Consumer Law

1317AL Triple damages for contraventions of Australian Consumer Law

(1) This section applies if:

(a) a company contravenes the Australian Consumer Law (within the meaning of the Competition and Consumer Act 2010); and

(b) proceedings are brought in a court for loss or damage suffered as a result of the contravention.

(2) If the court considers it appropriate to do so, the court may award against the company for the loss or damage triple the damages that the court could award in the proceedings apart from this section.

(3) In determining whether it is appropriate to award triple damages, the court must have regard to:

(a) the plaintiff's costs in the proceedings; and

(b) the difference between the financial resources available to the plaintiff and the company for the purposes of the proceedings.

2 At the end of Part 10.61

Add:

1689 Applicatio n of amendments relating to triple damages for contraventions of Australian Consumer Law

Section 1317AL applies in relation to contraventions of the Australian Consumer Law occurring on or after the commencement of this section.

The title of this bill is the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021. If the government truly wants to improve outcomes for litigation funding petitions, I suggest that we look especially into areas of competition law and adopt the provision that exists in US antitrust law, and that is to bring in a provision for treble damages. Therefore, this amendment states:

Triple damages for contraventions of Australian Consumer Law

(1) This section applies if:

  (a) a company contravenes the Australian Consumer Law (within the meaning of the Competition and Consumer Act 2010); and

  (b) proceedings are brought in a court for loss or damage suffered as a result of the contravention.

(2) If the court considers it appropriate to do so, the court may award against the company for the loss or damage triple the damages that the court could award in the proceedings apart from this section.

(3) In determining whether it is appropriate to award triple damages, the court must have regard to:

  (a) the plaintiff's costs in the proceedings; and

  (b) the difference between the financial resources available to the plaintiff and the company for the purposes of the proceedings.

The concept of automatic treble damages applies to the vast majority of US antitrust cases. Indeed, mandatory treble damages are a bedrock of the US antitrust landscape and, absent of any major change politically—and there appear to be none on the horizon—they are likely to remain part of the US antitrust law for many years to come. However, the concept of treble damages was not adopted into Australian competition law; thus when a plaintiff tries to pursue a larger company for damages under breaches of Australia's competition law, they are up against an enormous disadvantage in the costs and their ability to do so.

The US provisions are said to be based upon three simple principles: treble damages are necessary to deter potential wrongdoers; treble damages provide necessary incentives for private plaintiffs to bring antitrust suits—in Australia's case, it would be breaches of our competition law—and that treble damages are necessary to fully compensate the victims of anticompetitive conduct. If we are truly concerned about the low returns and the costs of plaintiffs bringing cases to the courts and the inadequate returns that they receive from the damages that are done to them, we should adopt here in Australia the same provisions that exist in US antitrust law. One exception is that it is automatic under US antitrust law, whereas under the provision that I'm proposing, it would be discretionary, at the court's option. If this is passed, I would be happy to support the bill, because it would in fact improve the outcomes for litigation funding participants. But if this moment is not passed, I cannot support the bill as it stands.

Mike Freelander (Macarthur, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments be disagreed to.

A division having been called and the bells having been rung—

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr C Kelly and Mr Christensen voting no.

Bill agreed to.