federal circuit court

TRANSCRIPT: Creating a �Թ�� and Codes List for the Federal Circuit Court

Emily Carter — Thu, 02 May 2024 06:41:11 +0000

TRANSCRIPT: Creating a �Թ�� and Codes List for the Federal Circuit Court Emily Carter Thu, 05/02/2024 - 16:41

29 April 2024

TRANSCRIPT

Australian �Թ�� and Family Enterprise Ombudsman Bruce Billson interview with Leon Delaney.

2CC Radio Canberra

Subject: Creating a �Թ�� and Codes List for the Federal Circuit Court

Leon Delaney

Well, thanks for joining us. You've been writing today about the importance of legal protections for small business and the unfortunate situation where small businesses that have effectively been dudded by big businesses have very limited options in trying to set things right.

Bruce Billson

Yeah, it's a concern. Just as the dark clouds roll in over the capital, Leon, sometimes those dark clouds for a small business can be another business treating them appallingly and in some respects in breach of the law. Now, the law might be competition and consumer law. There might be false and misleading representations that lulled them into doing something they otherwise wouldn't. Maybe unfair contract terms, another area where small businesses gain protections as if they were consumers. Or it might be an industry code like in franchising where there's certain bumper rails around what's reasonable commercial conduct.

If they're harmed by behaviour outside those rules of the road, it's too expensive for a small business to pursue that matter on their own behalf because they head off to the Federal Court of Australia. And that's a couple of hundred thousand dollars and a couple of years wait and that's why so much pressure then gets put onto our regulators to pick up those case matters and actually provide the protection that the small business is looking for and that these laws promise, but often doesn't materialise because of the barriers in implementing action in support of those laws.

Leon Delaney

Now, you've explained in your article today that the reason these matters go to the Federal Court of Australia is because that's how it's designed in the Constitution. And because of that there's no federal equivalent of what many states and territories have, a small claims tribunal where some of these matters might have otherwise been determined. But you've come up with a kind of solution, a way to create an equivalent to a small claims tribunal, but it's within the Federal Court.

Bruce Billson

That's right, Leon, because Chapter III of our Constitution says if there's any decision to be enforced on parties to a matter before a judgment body, it has to be before a court, or it could be a tribunal if the parties agree. And that's how you see things like the Administrative Appeals Tribunal have a role. People, when they're applying for certain things, they agree to be bound by it. That's okay.

But in a commercial dispute, how do you get the parties to agree to that kind of process? More often than not, the bigger, well-resourced party will think, hang on, let's go off to the Federal Court. We've got more money. We'll starve out the small business. They won't be able to stay in the case and we'll end up winning.

So, what we've said is, let's find a right-sized jurisdiction. A process where these smaller value matters up to, say, $1,000,000, which, you know, is everything to a small business, but in the scheme of a major corporate matter, probably not much in their eyes.

Send the really big price tag, really big penalty matters off to the Federal Court. But have these more immediate small business matters dealt with by the Federal Family and Circuit Court by creating a �Թ�� and Codes List that they can oversee. And cap the judgments or the penalties at $1,000,000, get matters heard quickly and get business back to business.

Leon Delaney

So, in other words, create a branch of the Federal Court that operates much like a small claims tribunal.

Bruce Billson

Spot on. That's right. We'd say, look, bring your matters, carry your own costs. One of the big issues about the Federal Court is if you and I took an action against a big party, they often introduce us to their legal team because under the Federal Court, in many cases, we get to pay their costs if we lose.

Now, that's one of the things that's very intimidating, that makes that access to justice out of reach and inaccessible to the average small or family business. What we're talking about is very responsive, let's use alternative dispute resolution first, let’s see what can be agreed long before we trouble His or Her Honour as the judge. But actually get to a point quicker, pay your own costs and have court rules that allow the court to appoint a technical expert on a matter of some technical disagreement rather than have lawyers walk in with trolleys of information where one expert is, you know, duelling with the other expert and burns up costs, time and resources and doesn't get you anywhere near an early resolution.

Leon Delaney

Okay. So, where's the ACCC and where’s the ASIC in all of this? Aren't they meant to be enforcing the rules?

Bruce Billson

They're really important players, Leon. But like this agency, they are funded by the taxpayer. So, when they decide which matters to pick up, to litigate, to investigate, they have to work out how to ration the money that's been available to them for that kind of enforcement.

And guess what? It's no big surprise. They’ll choose the big bang matters. They'll choose the cases that have a material impact on the economy, might be what’s called a systemic failure where problems have occurred over and over again. Or it might have considerable public interest.

If you and I, as prospective franchisees, put $600,000 down as a deposit on a franchise unit and then we decide quite reasonably under the cooling off arrangements we don’t want to proceed, we want to get our money back. What happens if we don’t get our money back? At the moment, we hope and pray the regulators will pick up that matter, but it's highly unlikely that they will. We need to be able to defend our own economic interests and have a jurisdiction, a court process, that lends itself to us directly engaging.

Leon Delaney

And in fact, the best line in the entire article refers to the inadequacy of those regulators for those reasons. And it says this: So, the law looks like it's a hunting dog that won't leave the porch. I love that.

Bruce Billson

I use that phrase to try and make the point that laws and regulations are passed by parliaments. These codes are put in place, and they promise much to the small and family businesses that rely upon them.

And I think the regulators and law makers hope the simple existence of those laws will mean people will be less inclined to infringe upon them. Well, that may have some merit, but the reality is when things go wrong and the law needs to be enforced, too often those regulators aren't there for them. The court system through the Federal Court is not a reasonable option, and we are proposing a really constructive solution to that to get matters resolved and get business back to business.

Leon Delaney

Okay. So, have you put this idea to the federal Minister for �Թ��, Julie Collins?

Bruce Billson

It's one of a number we've put in, not just to Minister Collins. You've known me long enough, Leon, to know it wouldn't just be one or two people I'm sharing this idea with. We've been pushing this out to any and all people that are interested, including ministers, including parliamentary inquiries and including in the in the court of public opinion being through channels like the op-ed that you're referring to at the commencement of this interview.

We're really working closely with collaborators to make sure the model is sound. It meets a range of expectations, including, for instance IP Australia, Intellectual Property Australia. What happens if someone's got an idea, you claim it's yours, well it’s really hard to get that heard quickly. Here’s another opportunity this Federal Circuit Court List could present to make that process more accessible and, frankly, function as it was intended.

Leon Delaney

If you’ve been putting out the feelers already, has there been any kind of interest expressed from the Federal Government?

Bruce Billson

We’ve had some encouragement to work up the idea and that’s what we’re doing. I’ve been working with some people in the judiciary, working with the legal fraternity, working with industry associations to map out the scope of this idea. One of the challenges I have Leon is to prove the need for it and that’s a challenge because we’re talking about people who would have defended their economic interest had this mechanism been there. The fact that it’s not there, how do you find those people?

So, we’re looking at surveying the small business community, having a look at our own case load where our alternative dispute resolution hasn’t been able to get an outcome and asking those people if you had this avenue available to you would you have utilised it. Thats part of the work we’re doing.

Leon Delaney

So, on that basis if there are any small business operators listening at the moment and they’ve got a story to tell, they should get in contact with your office.

Bruce Billson

Absolutely. Jump on our website asbfeo.gov.au

We love that field evidence and that input. It helps bring together the evidence we need to make this public policy case.

Leon Delaney

Bruce, thanks very much for your time today.

A ridiculous situation has many caught short looking for justice

Olivia Pearce — Mon, 29 Apr 2024 00:07:22 +0000

A ridiculous situation has many caught short looking for justice Olivia Pearce Mon, 04/29/2024 - 10:07

29 April 2024

Originally published in The Canberra Times.

By Bruce Billson.

Every small business deserves the right to be able to rely upon the safeguards, legal protections and business "bumper rails" that support fair conduct and competition in our economy.

Every business should be assured of the opportunity to compete on merit not just economic muscle and be able to defend their economic interest when these rules of the road are infringed upon and their business is harmed.

If a small business dispute arises under state law, they can in most cases go to a small claims tribunal for a simple, quick and cost-effective way of seeking justice.

But if it is a federal matter, the constitution decrees it must be decided by a court. And that is the Federal Court of Australia.

It will require a small business to have at least $200,000 ready to spend on their own case. And you can wait two years to get an outcome.

If that's not frightening enough, one other thing that can be truly terrifying for a small business is the "cost order gorilla" - a COG in the federal machine of justice that a litigant has to be able to meet before the case is heard. Put simply, if you lose, you pay for the other party's costs.

It's not unfamiliar for a small business to be introduced to the legal team of a big business they're up against. "As a courtesy," the other side might say, "I thought I'd introduce you to these King's Counsels so you can know their names as you'll get to pay for them."

No wonder most cases never make it to court. A small business has not the cash, the legal horsepower, or the ability to wait years for the chance of a timely restorative outcome that will put things right so they can get back to business.

How does this system encourage and empower a small business to defend their own economic interest? This is a massive power imbalance that prevents a small business getting access to justice.

The Australian �Թ�� and Family Enterprise Ombudsman can be called upon to try and resolve the underlying dispute through case management and mediation but that doesn't remedy unlawful conduct and harm it has caused.

Plainly, this is a ridiculous situation. It is neither an affordable or timely solution and they may go out of business waiting.

It leaves a small business with just one option: to hope and pray a regulator, like the ACCC or ASIC, picks up the baton and decides that their case is worth spending its scarce taxpayer-funded resources on.

Understandably, these regulators go for the big-impact cases that have a meaningful economy-wide effect, represent a systemic failure with many examples of similar wrong-doing, a show-trial value to warn others against breaching the law or have a major public profile.

And here's the next problem.

We have competition law protections around misuse of market power, unconscionable conduct, false and misleading representations, unfair contract terms, and those sorts of things.

There are consumer-like protections for small businesses and numerous codes where there are inherent power imbalances, and even proposals for more anti-competitive safeguards and bumper rails, such as unfair business practice protections to give small business a chance to compete and win customers on merit, not muscle.

These promise so much - but too often there's woefully little follow through to enforce them and make sure there's actually consequences.

Unfortunately, a small business could be deeply aggrieved, their personal and team members livelihoods ruined, their lifesavings gone because the law is being infringed upon by a blatant breach of a code or law that's supposed to protect them.

Yet that is not enough to get action because it doesn't get through the enforcement gates of the regulator. For the devastated small business owner who thought the law was there to support them, the safeguards may as well not exist and the regulators are just not there for them.

So, the law looks like it's a hunting dog that won't leave the porch because it won't get up and bark and pursue the wrong-doing and a remedy for the harmed small businesses, even though they've been infringed upon.

The solution, without running afoul of chapter III of the constitution, is to have an agile, cost-effective court arrangement that can mimic the virtue of those small claims tribunals in a state jurisdiction.

The answer, in my view, is to introduce a Federal �Թ�� and Codes List into the business agenda of the Federal Circuit and Family Court of Australia.

This would provide small businesses with a pathway that's right-sized, affordable and timely, and empower the individual to defend their own economic interest without a two-year delay, eye-watering expense and the cost-order threat from the other party. It is a simple change to give them a chance to restore whatever harm's being caused and get harmed small businesses back to business.

It would be low-cost and without cost-orders, except where a judge determines the matter is vexatious or frivolous. We suggest capping disputes at $1 million for awards and penalties, and proceedings could be delivered via online hearings, significantly reducing the time and cost burden on a small business.

It would require compulsory alternative dispute resolution before you even get to the court gate.

The Federal �Թ�� and Codes List would deal with matters that are day-to-day commerce. They're not huge numbers in proportion to the overall economy, but, if you pay $600,000 as a deposit on a franchise and decide, under the law, to exercise your cooling-off right and you can't get your money back, that 600 grand is a very big deal to the parties involved.

It is important to include codes because there is an inherent power imbalance in franchise, in horticulture and in the food and grocery sectors.

This jurisdiction could also facilitate enforcement by regulators, as well as free up the ACCC and higher courts to deal with litigation focused on the big systemic and significant market issues.

The regulators could more readily bring lower-value matters that are still essential for demonstrating that the law matters and to establish the legal meaning and operation of concepts in the law that haven't been tested.

Clear Court decisions would enable regulators to be more sure-footed in providing guidance on what the law means and how it is to be fairly applied by business.

Time and time again we see matters in the federal jurisdiction where there is no prospect of a satisfactory remedy for a small business because of the cost in turning up, and the time waiting for a decision.

Let's make better use of the bumper rails designed to support fair and reasonable commerce and competition in our economy to deliver access to justice that is right-sized, accessible, timely, affordable and so desperately needed.

TRANSCRIPT: Supermarket inquiry, Federal Circuit Court �Թ�� and Codes List

Emily Carter — Wed, 17 Apr 2024 01:27:11 +0000

TRANSCRIPT: Supermarket inquiry, Federal Circuit Court �Թ�� and Codes List Emily Carter Wed, 04/17/2024 - 11:27

16 April 2024

TRANSCRIPT

Australian �Թ�� and Family Enterprise Ombudsman Bruce Billson interview with Ross Greenwood.

Business Now, Sky News

Subject: Supermarket inquiry, Federal Circuit Court �Թ�� and Codes List

Ross Greenwood

Do supermarkets use their size to disproportionately apply pressure on smaller suppliers. And if so, what can be done about it? Well, one organisation that will hear these claims is the small and family business Ombudsman, who also put in a submission to this Senate inquiry. The Ombudsman is Bruce Billson, who joins me now from Canberra. Bruce, always good to chat to you about this. The whole aspect of this really goes to the balance of power. Who has the power in these supply agreements?

Bruce Billson

The big issue is how do you manage that. If you and I were running a small supply business and we wanted any kind of scale, we'd almost have to look at a supermarket chain relationship and that puts us in a precarious situation Ross.

If we invest considerably to meet that scale, then we don't want that sunk investment just sitting around at risk of being played a little bit by the supermarkets if they want to exercise that power. And that's where the Food and Grocery Code comes in and tries to make sure those relationships are respectful, commercially reasonable, and that there are some bumper rails to guide that conduct where there is that risk that the dominant party might use its muscle in commercial negotiations.

Ross Greenwood

Okay, so there's a few ways in which you've recommended that this balance of power be adjusted, some of which have been actually looked at in the Emerson review of the Code of Conduct. One, a mandatory code; two, more powers for the ACCC; but one that you've come up with which hasn't really been talked about is this recommendation to introduce a �Թ�� and Codes List in the Federal Circuit Court and Family Court of Australia. What exactly does that do and why would that change the balance of power?

Bruce Billson

Put simply, Ross, it's almost like a small claims tribunal in the federal jurisdiction. These federal laws that govern competition and fair conduct and the oversight of industry codes like the one we're talking about, if a dispute arises and a party wants to exercise its legal right to defend its interests, it's off to the Federal Court of Australia. Now that's $250,000 likely in cost. You might have to wait two years before you get your time to argue your case. And then there is that risk that if you lose, you get to pay the costs of the other side. Now, that is an extraordinarily terrifying pathway to go. So, what small businesses tend to rely upon is hoping and a praying that the ACCC will pick up the matter on their behalf.

What we're urging is a change to the justice system. With the Federal Circuit Court �Թ�� and Codes List, a simple idea empowers small business economic interest holders to actually advance and protect those themselves through appropriate mechanisms in terms of cost, timely response, and, frankly, a chance to restore whatever harm’s being caused back to a place where the business can get to business.

We think that is a fundamental game changer and too often people talk about aspects of our competition and fair conduct laws and don't realise they look great, but they are hunting dogs that won't leave the porch unless the commission picks up a case and runs it on behalf of an aggrieved business.

Ross Greenwood

But the reality of this is also that if you suddenly do not supply a supermarket, or if you suddenly find that you don't get the shelf space that you need, you’re out of business before you even get to the next six-monthly hearing inside a court. That is a fundamental issue. So, in this particular case, because of the precarious nature of many small businesses, they need to get swift justice. That's the important aspect of this.

Bruce Billson

Absolutely, and the model we're proposing would see that accessible within a handful of months, not a number of years. It's also about recognising that the ACCC, using taxpayer’s money Ross, has to choose which cases to pursue. So, they tend to go for the ones that have a material impact on the economy, a systemic failure or considerable public interest. If you and I, as individual suppliers are being treated in a shabby way and contrary to what the Code or some of the protections in the competition law would expect, we're not going to get through those gates. So, there's the promise of legal protection and those bumper rails around fair commercial conduct, but not the follow through to make sure there's actually consequences for those that step out of what's reasonable in terms of a market economy.

Ross Greenwood

I'll tell you what, it's great to have your insight on the program, Bruce. I know you’ve been working with small business for such a long time and many thanks for your time today.

Bruce Billson

Good to be with you and your viewers Ross.

federal circuit court

TRANSCRIPT: Creating a �Թ��� and Codes List for the Federal Circuit Court

TRANSCRIPT

A ridiculous situation has many caught short looking for justice

TRANSCRIPT: Supermarket inquiry, Federal Circuit Court �Թ��� and Codes List

TRANSCRIPT

TRANSCRIPT: Creating a �Թ�� and Codes List for the Federal Circuit Court

TRANSCRIPT: Supermarket inquiry, Federal Circuit Court �Թ�� and Codes List