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Penalties/remedies | Damages

 

Overview

A person who suffers loss or damage by conduct of another which contravenes Part IV may recover the amount of that loss. Action must be brought within six years from the date the cause of action arose.

 

The provision (Section 82)

(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or IVB, or of section 55B, 60C or 60K, may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

 

Matters to consider

In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) Justice Gordon set out the elements of a damages claim under section 82 (my emphasis):

[301] Section 82 has at least five discrete elements: Marks v GIO Australia Holdings Limited [1998] HCA 69; (1998) 196 CLR 494 at [95]. One element is that only a person who has suffered loss or damage may rely on the section: I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41; (2002) 210 CLR 109 at [42]- [45]. Another element is the causal requirement that the injury be sustained by the contravention: Marks at [95]. If the Court finds that damage has occurred, it must do its best to quantify the loss even if a degree of speculation and guess work is involved: Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; (1984) 57 ALR 167 at 183. Of course, loss or damage includes economic or financial loss as well consequential loss which is a direct result of the conduct in question: Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 and Frith v Gold Coast Mineral Springs Pty Ltd [1983] FCA 28; (1983) 65 FLR 213 at 232.

 

Cases

There has been relatively little private litigation in competition law matters giving rise to damages claims; in some cases the matters have been settled prior to judgment. A recent example is:

For a useful list of competition cases involving private litigation between 2004-2014 (and the outcomes) see:

Alexandra Merrett and Rhonda L Smith, 'The public benefits of private litigation' (July 2014) 19 The State of Competition

 

Commentary

See the reading page.