Competition and Consumer Act 2010 (Cth)
Section 82
Actions for damages
[see note 2*]
Note: The Treasury Laws Amendment (2018 Measures No. 5) Bill 2018 was passed by Parliament on 18 February 2019 and will add provisions relating to no adverse costs orders which will apply to proceedings commenced after 1 July 2019.
The provision
(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.
Note 2
Note 2 provides, relevantly:
Subsection ... 82(1), - Schedule 5 (items 36, 50, 54 (Note), 65, 71, 74, 90 and 96) of the Trade Practices Amendment (Australian Consumer Law)
Act (No. 2) 2010 (No. 103, 2010) provide as follows:Schedule 5
...
65 Subsection 82(1)
Omit "Part IV, IVA, IVB or V or section 51AC, or a provision of the Australian Consumer Law,", substitute "Part IV or IVB".
...
The proposed amendments were misdescribed and are not incorporated in this compilation.
Legislative history
Amended by Treasury Laws Amendment (2018 Measures No. 5) Bill 2018.
Schedule 5 - Small business access to justice
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 the applicant is not liable for the costs of any respondent to the proceedings, regardless of the outcome or likely outcome of the proceedings.
(5) The court may only make an order under subsection (4) if the court is satisfied that:
(a) the action raises a reasonable issue for trial; 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 possibility of a costs order that does not favour the applicant might deter the applicant from pursuing the action.
(6) The court may satisfy itself of the matters in subsection (5) by having regard only to the documents filed with the court in the proceedings.
(7) A person who appeals a decision of the court under subsection (4) is liable for any costs in relation to the appeal.
Application
The amendment of section 82 of the Competition and Consumer Act 2010 made by this Schedule applies in relation to actions under subsection 82(1) of that Act brought on or after 1 July 2019.
Amended by Competition and Consumer Amendment (Payment Surcharges) Act 2016 (Act 9 of 2016)
Inserted references to s 55B
More forthcoming
Note: the content of s 82 did not alter with the name change of the Act (from Trade Practices Act 1974 to Competition and Consumer Act 2010; consequently references to TPA s 82 are equally applicable)
Relevant cases
Commentary
From the cases
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:
[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.
Academic commentary
