Wednesday, 22 April 2015

Putting Theory into Practice: Principled Negotiation with the ACCC


Introduction
Principled (interest based) negotiation is not a new concept, having been around for over thirty years.  Since the creation of the Harvard Negotiation Project in 1979 and the initial publication of “Getting to Yes”[1] in 1981, the process of principled negotiation has been developed and refined to the stage were it now forms the basis of many Alternative Dispute Resolution (ADR) techniques.  For example, principled negotiation is arguably the dominant approach used by mediators in Australia who seek to focus the parties on their interests rather than their (legal) positions.  We also see principled negotiation being used extensively by businesses in commercial disputes.  However, there remains one significant area of dispute where principled negotiation appears to be the exception rather than the rule – namely in negotiations with regulators.  The question is why are some regulators apparently so resistant to employ principled negotiation techniques in their disputes?

In the following, I will explore the main influences and constraints on the way in which Commonwealth regulators negotiate – namely, the Model Litigant Policy,[2] the Civil Dispute Resolution Act 2011 (CDR Act) and a likely future requirement to develop and implement Dispute Resolution Plans (DMP). I will then examine how one well known Commonwealth regulator, the Australian Competition and Consumer Commission (ACCC) approaches its negotiations in the light of these various influences and constraints. 

Finally, I will examine the feasibility of parties using principled negotiation techniques in negotiations with the ACCC and how this approach may result in parties achieving better outcomes.  I will argue that the use of Principled Negotiation in settlement discussions with the ACCC is likely to generate better outcomes than adopting a more traditional adversarial approach.

What is Principled (Interest Based) Negotiation?
In the following, I will provide a very brief outline of the main features of principled negotiation.

Principled negotiation is, at its simplest, a technique of negotiation which seeks to focus on the parties’ interests. The benefits of focusing on interests rather than positions has been explained in “Getting to Yes” in the following terms:

When negotiators bargain over positions, they tend to lock themselves into those positions. The more you clarify your position and defend it against attack, the more committed you become to it.  The more you try to convince the other side of the impossibility of changing your opening position, the more difficult it becomes to do so. Your ego becomes identified with your position. You now have a new interest in “saving face” – in reconciling future action with past positions – making it less and less likely that any agreement will wisely reconcile the parties’ original interests.[3]

Not only is positional (or adversarial) bargaining likely to produce unwise outcomes, but it is seen as both inefficient and likely to endanger ongoing relationships.

The alternative is to engage in principled negotiation, which can be “boiled down” to the following four points:[4]

People: Separate the people from the problem

Interests: Focus on interests, not positions.

Options: Invent multiple options looking for mutual gains before deciding what to do.

Criteria: Insist that the result be based on some objective standard.

Advocates of principled negotiation argue that if the parties focus on their basic interests, mutually satisfying options and fair standards they will be able to achieve “wise agreements”.  In addition, the parties will be able to “reach a gradual consensus on a joint decision efficiently”, whilst achieving an “amicable outcome”.[5]

Principled negotiation is a radically different approach to the traditional adversarial approach to negotiation.  It is aimed at taking a less aggressive and hostile approach, whilst being more creative in generating options. In short, principled negotiators believe that if parties focus on their interests and are creative, they can achieve “win-win” outcomes.

How do Commonwealth Regulators negotiate?
Commonwealth regulators are not properly characterised as purely adversarial negotiators. Rather, Commonwealth regulators are subject to a range of influences and constraints on how they negotiate

One of the most significant constraints on how Commonwealth regulator’s negotiate is the Model Litigant Policy (Policy).   Under this Policy, Commonwealth regulators are required “to act with complete propriety, fairly and in accordance with the highest professional standards”.[6]

For example, the Policy creates the following specific obligations on all Commonwealth agencies and regulators:

·   to deal with claims promptly and not to causing unnecessary delay in the handling of claims and litigation;
·   to pay legitimate claims without litigation where it is clear that liability is at least as much as the amount to be paid;
·   to act consistently in the handling of claims and litigation;
·   not to require the other party to prove a matter which the Commonwealth knows to be true; and
·   not to take advantage of a claimant who lacks the resources to litigate a legitimate claim.

The effect of the Policy is to establish a set of principles which govern the way in which Commonwealth agencies and regulators conduct litigation.  These principles also affect the way regulators approach their negotiations.

The Policy creates obligations on Commonwealth regulators to give serious consideration to the use of ADR to resolve disputes.  For example, paragraph 2 states that Commonwealth regulators will meet their model litigant obligations by:[7]

(d) endeavouring to avoid, prevent and limit the scope of legal proceedings, wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes were appropriate.

Paragraph 2(e)(iii) imposes a further obligation on Commonwealth regulators to continue exploring ADR after they have commenced litigation.[8]

Furthermore, in 2008 an additional section dealing specifically with ADR was inserted into the Policy:[9]

5.1      The Commonwealth or an agency is only to start court proceedings if it has considered other methods of dispute resolution (eg alternative dispute resolution or settlement negotiations).

5.2      When participating in alternative dispute resolution, the Commonwealth and its agencies are to ensure that the representatives:

(a)         participate fully and effectively, and
(b)      subject to paragraph 2(e)(iv), have authority to settle the matter so as to facilitate appropriate and timely resolution of a dispute

The above directive provides further encouragement to Commonwealth regulators to explore ADR prior to the commencement of litigation and to continue exploring opportunities for using ADR after they have commenced litigation.

Another important constraint on the way in which Commonwealth regulators negotiate arises under the Civil Dispute Resolution Act 2011 (CDR Act).  The three main objectives of the CDR Act are to:[10]

  • ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted
  • promote a move away from an adversarial approach to litigation
  • improve access to justice by encouraging early dispute resolution.

The CDR Act applies to all civil litigants in the Federal Court and Federal Circuit Court, including Commonwealth regulators. Relevantly, the Act requires Commonwealth regulators to file a genuine steps statement explaining either:

(1)         what steps they have taken to resolve the dispute; or
(2)         why they have not taken any such steps.[11]

The main benefit of the CDR Act is that it has made Commonwealth regulators more accountable in terms of demonstrating to the Court and ultimately the Government, that they have taken genuine steps to avoid litigation, including genuinely exploring the feasibility of using ADR.

However, the main flaw in the CDR Act is the wide range of exclusions, most notably the exclusion of all civil penalty proceedings initiated by Commonwealth regulators.[12]  Due to this exclusion, the ACCC is not required under the CDR Act to take any genuine steps in the vast majority of cases to try to resolve disputes prior to litigation.

The final important constraint on the way Commonwealth regulators negotiate is the expectation that they develop DMPs.  The purpose of DMPs is to force Commonwealth agencies and regulators to clearly identify the steps which they are proposing to take for the avoidance and management of disputes.  These plans should include an evaluation of the effectiveness of existing mechanisms and processes of dispute management and seek to identify new strategies to improve dispute resolution processes.[13]

The Australian Law Reform Commission (ALRC) first recommended that every Commonwealth agency be required to develop and implement its own DMP in its 2000 report, Managing Justice.[14]  Unfortunately, no action was taken to implement this recommendation. 

The idea of Commonwealth agencies developing their own DMPs was revisited by NADRAC in its 2009 report, The Resolve to Resolve.[15] After considering the issue, NADRAC made the following three recommendations:[16]

Recommendation 8.4
The Attorney-General amend the LSDs (Legal Services Directions) to require agencies, unless an exemption is obtained, to develop and regularly review dispute management plans that require appropriate use of ADR.

Recommendation 8.5
The Attorney-General ask NADRAC, in consultation with OLSC, to prepare a model dispute management plan that could be used to assist agencies to comply with their obligations under the LSD.

Recommendation 8.6
The Attorney-General amend the LSDs to require agencies to include in their reports to OLSC details of their dispute management plans.

Whilst Recommendation 8.5 was actioned, the Government did not action the other two recommendations.  The relevant LSL has not been amended to require agencies to develop and regularly review DMP’s.  Rather the Attorney-General has issued a guidance note in which agencies are strongly encouraged to “adopt a strategic approach to dispute management…”[17]

As noted in the Productivity Commission report into Access to Justice Arrangements, as at April 2014 only three Commonwealth Government agencies had implemented DMPs – namely, the ACCC, the Australian Energy Regulator and the ATO.[18]

One could conclude that whilst the Commonwealth claims to be committed to requiring its agencies and regulators to make better use of ADR, this commitment has not materialised in two important respects. Exempting government litigation from the requirements of the CDR Act where a civil pecuniary penalty is being sought means that much Commonwealth litigation is proceeding to Court without any genuine steps being taken to avoid litigation. Furthermore, the absence of an obligation on Commonwealth agencies to develop DMPs means that there is no proper accountability in terms of assessing whether ADR is being seriously considered by regulators to resolve disputes and improve dispute resolution practice.

Negotiating with the ACCC
The ACCC has always been renowned for being a tough no-nonsense adversarial negotiator. Furthermore, at least in historical terms, the ACCC was not known as a strong supporter of ADR.

Important insights into the way in which the ACCC negotiates are provided by the Parker and Nielsen’s research into business perceptions of the ACCC.[19]  As part of their work, Parker and Neilsen conducted extensive qualitative and quantitative research through surveys of Australian businesses and interviews with stakeholders.[20]

One of the most significant findings reached by Parker and Neilsen related to whether the ACCC was dogmatic:[21]

The survey respondents are most negative about how undogmatic the ACCC is…

But with the undogmatic measure the focus is not so much on respondents’ normative assessment of the procedural and substantive justice of the ACCC, but rather on their perceptions of the way the ACCC relates to business. The focus is on the flexibility or intractability of the ACCC’s opinion of, and enforcement strategy in relation to, businesses.

Our measure of the dogmatism of the ACCC, however, relates to the rigidity and legalism of the ACCC’s enforcement reaction to those who it sees as breaching the law and not cooperating with it.

Parker and Neilsen’s qualitative interviews also suggested that the ACCC was not accommodating in negotiating settlements:[22]

In our qualitative interviews, many lawyers who were experienced in acting for clients against the ACCC report cases where they felt that the ACCC had not been sufficiently accommodating: a number of lawyers interviewed cite cases where they believed that the ACCC had barely cooperated at all with alleged offenders in trying to reach a settlement. Rather, it is said that the ACCC preferred to institute proceedings immediately if the alleged offender did not accede to all the ACCC’s demands.

In relation to perceptions of procedural and substantive justice, Parker and Neilsen stated that:[23]

In our qualitative interviews, lawyers also criticise the ACCC for being ‘unreasonable’ and therefore ‘unfair’ in its approach to enforcement by refusing to settle matters without the alleged offender admitting that they had breached the law in the ways alleged by the ACCC; demanding ‘over the top’ conditions in settlement agreements; inappropriately issuing court proceedings when the alleged offender and their lawyer believed a cooperative resolution without court action should be possible; and a generally uncooperative or demanding manner in discussing resolutions of enforcement action with alleged offenders.

The above research supports the view that the ACCC is an aggressive, adversarial negotiator with a strong preference for litigated outcomes.

That ACCC was not a supporter of ADR is well demonstrated by a number of cases in which it strongly resisted the referral of any of its cases to mediation pursuant to section 53 of the Federal Court Act 1976 (FCA). 

The most notable example of the ACCC’s then position in relation to mediation was the Lux case,[24] where the ACCC argued that the matter should not be referred to mediation for three reasons:[25]

(1)         Because the conduct related to conduct affecting a vulnerable person (ie intellectual disability) mediation was inappropriate;
(2)        That there was a public interest in allowing the Court to exercise its judicial functions and determine whether the alleged breaches had occurred; and
(3)         Mediation is singularly inappropriate for matters involving many disputed facts and where the issues have negligible prospects of being resolved through mediation.

The Court dealt with the first submission quite swiftly. Justice Nicholson observed that mediation was likely to be a more appropriate approach if it resulted in the vulnerable person not being required to give evidence and avoiding the pressure of participating in court proceedings.[26]

Nicholson J then noted that mediation had a broader role than simply trying to settle the entire dispute between the parties. Rather, mediation would be productive if it were successful in helping the parties to make some progress towards resolving some of the matters in dispute or clarifying the issues.[27]

The approach taken by the ACCC towards mediation in the Lux case is consistent with Parker and Nielsen’s findings about the ACCC’s dogmatic and unaccommodating approach to settlement negotiations. In the Lux case, it appears that the ACCC did not see any benefit in mediation unless it involved the respondent capitulating on every substantive point.

Based on a review of more recent ACCC cases, it appears that the ACCC no longer takes such a strong position in resisting court-ordered mediation. Indeed, a review of ACCC cases over the last few years suggests that its cases are often settled following court ordered mediation.[28]

There are further encouraging signs that the ACCC is becoming more open to the use of ADR as evidenced by the release of its first DMP.[29] 

In its DMP, the ACCC identifies the key principles for its dispute management framework:[30]  

•    to resolve disputes as early as possible and by the simplest and most cost effective means that will achieve the best possible outcome for the community
•   where a process is prescribed by legislation, to act in accordance with our statutory obligations
•    to take genuine steps to resolve or clarify disputes both before and throughout any court or tribunal proceedings
•  to manage disputes in a transparent, fair and consistent manner.

The ACCC states that they have committed to promoting their plan both internally and externally, to implement staff training to build awareness of dispute resolution mechanisms and to strengthen their staff’s negotiation and influencing skills.

Principled Negotiation with the ACCC
When engaged in settlement discussions with the ACCC it is important to focus your attention on how you are approaching these discussions.  Many law firms and businesses take a highly unstructured and ultimately unprincipled approach to their negotiations.  As a result, the outcomes which they achieve are often much less advantageous than would have been the case had they applied Principled Negotiation strategies.

Interests
The first issue to focus on is your client’s underlying interests, rather than its legal position.  Often clients will identify the following underlying interests:

·        to have the case finalised as soon as possible;
·        to agree to as low a pecuniary penalty as possible;
·       to convince the ACCC that their conduct was not intentional, but had come about due to their inattention to, or ignorance of, relevant laws; and
·       for the ACCC to change its apparent view of the client that they are disreputable or dishonest.

Often the ACCC will take an aggressive approach during the investigation and litigation phase because they have formed a highly negative view your client. Therefore, it should be your primary concern to convince the ACCC that their initial impressions of your client is incorrect.

It is relatively easy to identify the ACCC’s interests in most cases.  

The first issue to consider is whether the case against your client falls into one of the ACCC’s stated priority areas for the current year.   If it does, you can be quite certain that the ACCC see the case as important, and one to which it is willing to devote considerable resources.

Second, the ACCC has an interest in achieving both specific and general deterrence by obtaining the largest pecuniary penalty possible.

Best Alternative to a Negotiated Agreement (BATNA)
The next step is to consider your client’s Best Alternative to a Negotiated Agreement or BATNA. In the vast majority of ACCC cases, it is unlikely that your client will have very strong of BATNA.  This is because the ACCC often pursues cases where the evidence is strong, based on an in-depth and thorough investigation.

The ACCC also commits significant legal resources to all of their cases.  The ACCC’s very high success rates in litigation, which has exceeded 90% for many years, is testament to their ability to select strong cases and to generally run their litigation very professionally.

Many businesses which have gone to trial against the ACCC have found that the ACCC has been successful in establishing most of its allegations. While there are a few notable losses, such as the Metcash, Pfizer, Air Cargo Cartel, and Fly Ash cases, these high profile losses remain the exception.

Having said that, you should not commit your client entirely to achieving a successful negotiated settlement. If you take such an approach and the settlement fails, your client will be entirely unprepared for the litigation. Therefore, it is still vitally important for you to take steps in the litigation to improve your client’s BATNA to enhance their negotiating position. 

The best way to improve your BATNA is to invest the time required to prepare a detailed response to the ACCC’s Statement of Claim or Fast-track Statement.  By continuing your litigation preparation, you will make it clear to the ACCC that if the settlement negotiations fail, you “appear to” have a credible BATNA – namely, to run the litigation.

Communications strategy
You also need to discuss and devise a specific communications strategy.

The first aspect of your communications strategy should be convey to all relevant parties that you are seeking to work with the ACCC to address their concerns.  Many businesses make the odd decision, when they get sued, to state that there is absolutely no merit in the ACCC’s case and that they are proposing to fight the case “vigorously”.  I fail to see any good reason for making these types of statements.  

First, such statements often prove to be entirely incorrect, as the business ends up deciding to settle the case a few months later. Second, such ill advised comments often come back to haunt the client when the case reaches its conclusion and the Court is considering  the appropriate penalty.  The ACCC is likely to draw the Court’s attention to these statements as evidence that your client did not cooperate and admit the error of its ways at the earliest possible opportunity. 

Furthermore, such inflammatory comments are likely to fuel media interest in the case. The better approach is to downplay the significance of the case, while at the same time suggesting that the litigation has arisen due to a misunderstanding or miscommunication.

The second aspect of your communications strategy should be to take the initiative to prepare a detailed settlement submission prior to any settlement meeting. This settlement submission will form the basis of any subsequent settlement meetings with ACCC.  This is a sound strategy for a number of reasons. 

First, you should avoid a situation where the ACCC sets the agenda for any settlement meeting.  By taking the initiative to prepare a detailed settlement submission, you have the opportunity to set the agenda for future negotiation discussions.

Second, if you prepare an initial settlement submission you can also set the approach which will be taken in the subsequent settlement discussions.  If you present your arguments by reference to principled negotiation strategies, techniques, and concepts, it is likely that the settlement negotiations will proceed in that way. In other words, if you set out a principled negotiation approach in your settlement submission, it is likely that the ACCC will also adopt a similar approach.  In most cases, your client will achieve a better outcome if they adopt a principled negotiation approach.

For example, in one case the respondents wanted to ensure that an assessment of the appropriate penalty considered all of the relevant ACCC penalty cases within the previous 12-month period, cross-referenced against each respondent’s annual sales turnover.   By presenting the submission in this way, the respondent put the ACCC in the position of having to explain to why this approach was incorrect or inappropriate.

Further, the respondents wanted to ensure this external measure excluded particular ACCC penalty outcomes which were not objectively valid – namely, the exceptionally large penalties which the ACCC routinely obtains against companies in liquidation.  The view was taken that these penalties are not valid as there was no contradictor to argue that such large penalties were disproportionate in terms of both the nature of the conduct and the size of the contravener.

Worsening the ACCC’s BATNA
Another purpose of the initial settlement submission is to use the submission to try to weaken the ACCC’s BATNA.   The ACCC can sometimes become over-confident about the strengths of their case. Therefore, the challenge is to first identify problems with their case and then to draw attention to these problems in your settlement submission in order to undermine their confidence.

One strategy to weaken the ACCC’s BATNA is to draw the ACCC’s attention to other businesses in the market which your client believes either are engaging in more blatant conduct than your client or alternatively, while engaging in the same conduct, are either much larger companies or have “form” for engaging in similar conduct.  Your purpose in drawing attention to these other businesses is to make it clear to the ACCC that in any trial you are going to force the ACCC to explain to the Court, both during the trial and at the penalty phase, why they decided to pursue your client rather than some other business which was a more appropriate enforcement target.

Another strategy is to draw attention in your settlement submission to any procedural failures by the ACCC during either its investigation or litigation. 

The first issue to focus on is whether the ACCC has acted consistently with the Model Litigant Policy.  For example, did the ACCC give your client an opportunity to accede to all of the ACCC’s demands prior to commencing litigation, or rather did the ACCC commence litigation without providing your client with that opportunity?

Another interesting issue is whether the ACCC has commenced litigation against a small business which did not have sufficient financial resourced to fight the case.  It seems to me on my reading of the Model Litigant Policy, that such conduct could contravene the ACCC’s obligations under that Policy.

The second issue to raise is whether the ACCC made an inappropriate statements at the commencement of legal proceedings in its media release or in other media comment. The ACCC has developed an apparent practice over the last few years of making highly damaging sub-judice statements about its cases.  Accordingly, you should draw attention to any such statements in your submission so that the ACCC will know that this conduct will become an issue at the trial.  In particular, the ACCC will be concerned that the trial judge may comment negatively about these statements in his/her judgement.

Making the first offer
Finally, and most controversially, it is highly advisable for your client to propose a serious of remedies, including a specific penalty figure, to the ACCC in its initial settlement submission. It is important to do this before the ACCC proposes specific remedies and a specific penalty figure. 

It is very common for the respondents not to want to propose a settlement figure to the ACCC, preferring instead to let the ACCC make the first move.  Respondents are then often quite shocked at the size of the pecuniary penalty proposed by the ACCC.  You should avoid making this mistake.

You will find that your client will be very reluctant to take this approach, as it seems somewhat counterintuitive to make the first offer.  However, once you explain the following strategy to your client, they are more likely to agree:

(1)          any initial settlement figure which you propose would be at the lower end of the permissible range;

(2)          by proposing a figure, you will put the ACCC in the position of having to explain why your proposed penalty figure should be increased, by reference to the objective external measures which you have proposed; and

(3)          it is much more difficult to “talk the ACCC down” from a higher settlement figure, than it is to argue against the ACCC seeking to ratchet up your proposed settlement figure without the ACCC providing objectively valid reasons for doing so.

Using principled negotiation with the ACCC
Using principled negotiation with the ACCC has to potential to achieve more favourable or, in the language of Getting to Yes, “wiser” settlements for respondents.   While the ACCC is likely to appear quite uncomfortable and confused by such a negotiating approach, it is likely to respond quite positively to principled negotiation.  

Principled negotiation techniques are also likely to be beneficial for respondents in achieving more favourable outcomes in ACCC matters, because of what may be described as a “me-too” effect.  In my experience, the ACCC usually wishes to position itself, in both litigious and non-litigious matters, as the more “procedurally reasonable” of the two parties involved in the dispute. Therefore, when faced with an respondent who was applying the principled negotiation approach, it is likely that the ACCC will also decide to adopt a more principled negotiation stance, largely in its desire to appear more “procedurally reasonable” than the respondent.

The main obstacle to the ACCC using principled negotiation is that the majority of ACCC staff do not have any training in negotiation, let alone principled negotiation.  Therefore, it is encouraging that the ACCC has stated in its DMP that providing negotiation training to ACCC staff is a priority.

Conclusions
Principled negotiation appears to be the exception rather than the rule when negotiating with Commonwealth regulators.  Despite numerous reviews over the last 20 years recommending that all Commonwealth agencies and regulators implement detailed DMP’s, to-date only three agencies have done so. Only when it becomes mandatory for all Commonwealth agencies and regulators to implement DMPs are we likely to see the widespread adoption of ADR and principled negotiation. Changes to the CDR Act are also needed to ensure that genuine steps are taken in most Commonwealth disputes to avoid litigation.

The ACCC has a well-earned reputation as a hard-nosed and uncompromising negotiator. However, there are a number of positive signs that the ACCC is recognising the advantages of taking a more strategic and nuanced approach to dispute resolution. The release of its first DMP in 2013 evidences the ACCC’s newfound commitment to more effective dispute management.

It is hoped that in the context of the ACCC’s new focus on improving its dispute resolution capabilities, that it will recognise the importance of adopting principled negotiation.  While the ACCC may not have a great deal of exposure to principled negotiation, I believe that when faced with an opponent who has chosen to utilise this approach, the ACCC is likely to embrace a principled negotiation stance.  Whether the ACCC’s decision to adopt this particular negotiation position arises out of a misplaced competitive desire to out-do its opponent in the reasonableness stakes does not matter, as long as their approach results in fairer, more reasonable and wiser negotiated outcomes.





[1] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books, 2011).
[2] Commonwealth Model Litigant Rules, Appendix B, Legal Service Directions, 2005 made under section 55ZF of the Judiciary Act 1903, Office of Parliamentary Counsel, Canberra.
[3] Fisher, et al, above n 1, 4-5.
[4] Ibid  11.
[5] Ibid 14-15.
[6] Model Litigant Policy, above n 2, 23.
[7] Ibid.
[8] Ibid.
[9] Ibid 25.
[10] Commonwealth Attorney-General, Civil Dispute Resolution Act 2011 at http://www.ag.gov.au/legalsystem/alternatedisputeresolution/pages/civildisputeresolutionact2011.aspx
[11] ss.6 and 7, CDR Act.
[12] ss15(a) and (b), CDR Act.
[13] Commonwealth Attorney-General, Dispute management in Australian Government agencies at http://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/DisputemanagementinAustralianGovernmentagencies.aspx
[14] ALRC, Managing Justice: A Review of the Federal Justice System, January 2000, 40.
[15] NADRAC, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction, September 2009.
[16] Ibid 13.
[17] Commonwealth Attorney-General, Use of Alternative Dispute Resolution – Guidance Note 12, 2 at  http://www.ag.gov.au/LegalSystem/LegalServicesCoordination/Documents/Use%20of%20Alternative%20Dispute%20Resolution%20ADR.pdf
[18] Productivity Commission, Access to Justice Arrangements, Draft Report, April 2014, 262
[19] Christine Parker and Vibeke Lehmann Nielsen, ‘What Do Australian Businesses Really Think of the ACCC, and Does it Matter?’ (2007) 35 Federal Law Review 187.
[20] Ibid 196-7.
[21] Ibid 212-3.
[22] Ibid 205.
[23] Ibid 210.
[24] ACCC v Lux Pty Ltd [2001] FCA 600.
[25] Ibid [13-15].
[26] Ibid [13].
[27] Ibid [30].
[28] Review of ACCC cases reported on Austlii in the period from 2000 to 2014 – Austlii website accessed on 1 September 2013.
[30] Ibid.

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