The Federal Magistrates Court will be scrapped in a bid to save time and money. All federal matters will now be heard by the Federal Court. Why is this relevant to competition law? Late last year the Government, in its infinite wisdom, decided to give the Federal Magistrates Court the power to hear matters relating to s 46 (misuse of market power) where brought by a corporation or private person (see Trade Practices Legislation Amendment Act 2008); in all other competition law matters the Federal Court has exclusive jurisdiction.
Misuse of market power is, of course, one of the most complex areas of competition law and policy and, although the Government claimed this amendment was designed to make access to ‘justice’ quicker and easier, it was always doomed to failure. Leaving aside the fact that the Federal Magistrates Court has no expertise in complex s 46 (or any competition law) matters and that by their very nature (requiring economic evidence etc) these matters are costly pursuits, the abolition of the FMC has been contemplated for some time. No s 46 case has been brought under s 46 in the FMC and never will be.
Ironically, while the conferral of power on the FMC for certain s 46 cases was said to be needed to provide greater access to justice for small business, the AG now claims abolishing the Court will provide greater access to justice.
The newly structured Federal Court will, however, operate in two tiers, with appeals ‘and other complex work’ generally being heard in the first tier by Federal Court judges and less complex matters being heard at the second tier, which will be operated by the Magistrates currently working in the Federal Magistrates Court (who will still be called Magistrates). It is unclear whether competition law matters will be capable of being heard at both tiers or (more appropriately) just in the first tier.
See Press Release from the Attorney General.
Follow up – magistrates may thwart attempts to completely abolish the Court
Competition Law 