Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 675

Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 675

The Court declined to strike out the challenged categories of witness evidence at the objection stage. Industry participant evidence about market perceptions and competitive behaviour was admissible at least as evidence of perceptions affecting conduct, though generalised statements might receive little weight. Franchisee evidence about the Telstra Promotion was admissible for the limited purpose of showing the franchisee's perception and attitude, not to prove actual public attitudes. The ACCC officer evidence was arguably relevant to penalty and would not be excluded on relevance grounds. Dr McLeod's qualifications were not shown to be insufficient at this stage, and objections to...

Jurisdiction
Australia
Judgment Date
05 August 1999
Procedural Posture
Application for Declaratory and Other Relief Relating to Alleged Contraventions of Part IV of the Trade Practices Act 1974 (cth), With Cross Claim / Ruling on Objections to Witness Statements Before Trial
Outcome
The Court made no directions on the numerous specific objections, required the ACCC to implement its concessions on admissibility, and required the ACCC to identify significant elements of Dr McLeod's report it sought to have treated as submission.
Legal Topics
['opinion Evidence' 'hearsay' 'relevance' 'expert Evidence' 'market Perception and Behaviour' 'admissibility of Witness Statements' 'substantial Lessening of Competition']
['evidence' 'competition and Consumer Law' 'trade Practices'] ['opinion Evidence' 'hearsay' 'relevance' 'expert Evidence' 'market Perception and Behaviour' 'admissibility of Witness Statements' 'substantial Lessening of Competition']

Case Brief

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Procedural Posture

Application for Declaratory and Other Relief Relating to Alleged Contraventions of Part IV of the Trade Practices Act 1974 (cth), With Cross Claim / Ruling on Objections to Witness Statements Before Trial

Legal Issues

  1. 1 ['Whether evidence from industry witnesses about market perceptions, competitive processes and market behaviour should be struck out as opinion, hearsay, conclusionary or irrelevant.' 'Whether franchisee evidence about the Telstra Promotion was admissible as evidence of market participant perception rather than proof of public attitudes.' 'Whether evidence from ACCC officers about communications with REIWA was relevant to penalty if a contravention were established.' 'Whether Dr McLeod was qualified to give expert economic evidence and whether parts of his report should be treated as submission rather than evidence.' 'Whether the Court should rule on each specific objection to paragraphs of the witness statements.']

Ratio Decidendi

The Court declined to strike out the challenged categories of witness evidence at the objection stage. Industry participant evidence about market perceptions and competitive behaviour was admissible at least as evidence of perceptions affecting conduct, though generalised statements might receive little weight. Franchisee evidence about the Telstra Promotion was admissible for the limited purpose of showing the franchisee's perception and attitude, not to prove actual public attitudes. The ACCC officer evidence was arguably relevant to penalty and would not be excluded on relevance grounds. Dr McLeod's qualifications were not shown to be insufficient at this stage, and objections to...

Court Disposition

The Court made no directions on the numerous specific objections, required the ACCC to implement its concessions on admissibility, and required the ACCC to identify significant elements of Dr McLeod's report it sought to have treated as submission.

Orders

  • ['The Commission is to arrange for the reformulation or marking of the statements filed in Court in accordance with its concessions as to admissibility and to file and deliver copies so reformulated or marked within seven days.' "The Commission is to provide to the Court and respondents a list of any significant...