Competition and Consumer Act - Australia

Скачать книгу

under subsection (4) — the matters in subsections (1) and (4).

      82 Actions for damages [see Note 2]

      (1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC 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.

      83 Finding in proceedings to be evidence [see Note 2]

      In a proceeding against a person under section 82 or in an application under subsection 51ADB(1) or 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C, 86D or 86E, or for an offence against section 44ZZRF or 44ZZRG, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, V or VC is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.

      84 Conduct by directors, employees or agents

      (1) If, in:

      (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a body corporate; or

      (b) a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 44ZZRJ, 44ZZRK, 46 or 46A or Part IVB applies;

      it is necessary to establish the state of mind of the body corporate, it is sufficient to show that:

      (c) a director, employee or agent of the body corporate engaged in that conduct; and

      (d) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

      (e) the director, employee or agent had that state of mind.

      (2) Any conduct engaged in on behalf of a body corporate:

      (a) by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or

      (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

      shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

      (3) If, in:

      (a) a prosecution for an offence against section 44ZZRF or 44ZZRG in respect of conduct engaged in by a person other than a body corporate; or

      (b) a proceeding under this Part in respect of conduct engaged in by a person other than a body corporate, being conduct in relation to which section 44ZZRJ or 44ZZRK or Part IVB applies;

      it is necessary to establish the state of mind of the person, it is sufficient to show that:

      (c) an employee or agent of the person engaged in that conduct; and

      (d) the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

      (e) the employee or agent had that state of mind.

      (4) Conduct engaged in on behalf of a person other than a body corporate:

      (a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or

      (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;

      shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.

      (4A) If:

      (a) a person other than a body corporate is convicted of an offence; and

      (b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the person first mentioned in that subsection; and

      (c) the person would not have been convicted of the offence if that subsection had not been enacted;

      the person is not liable to be punished by imprisonment for that offence.

      (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.

      85 Defences

      If, in any proceedings under this Part against a person other than a body corporate, it appears to the Court that the person has or may have:

      (a) engaged in conduct in contravention of a provision of Part IV; or

      (b) engaged in conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f);

      but that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability to any penalty or damages on such terms as the Court thinks fit.

      86 Jurisdiction of courts [see Note 2]

      (1AA) A reference in this section to this Act, or to a Part, Division or section of this Act, is a reference to this Act, or to that Part, Division or section, as it has effect as a law of the Commonwealth.

      (1) Jurisdiction is conferred on the Federal Court in any matter arising under this Act in respect of which a civil proceeding has, whether before or after the commencement of this section, been instituted under this Part or has been instituted in relation to subsection 2(1) of the Australian Consumer Law (as applied under Division 1 of Part XI).

      (1A) Jurisdiction is conferred on the Federal Magistrates Court in any matter arising under section 46 or Part IVB in respect of which a civil proceeding is instituted by a person other than the Minister.

      (2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVB in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.

      (3) Nothing in subsection (2) shall be taken to enable an inferior court of a State or Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.

      (3A) The Supreme Court of a State is invested with federal jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court.

      (3B) Subject to the Constitution, the Supreme Court of a Territory is conferred with jurisdiction with respect to any matter in respect of which a civil proceeding covered by section 44ZZRI is instituted in that Court.

      (4) The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:

      (a) the jurisdiction of the Federal Magistrates Court under subsection (1A); and

      (b) the jurisdiction of the several courts of the States and Territories under subsection (2); and

      (ba) the jurisdiction of the Supreme Courts of the States under subsection (3A); and

      (bb) the jurisdiction of the Supreme Courts

Скачать книгу