Labor will ensure a more even playing field for private litigants, so that small businesses and their industry representatives can better use existing legislation to prove the abuse of competition under Part IV of the Competition and Consumer Act.

Allowing judges in Federal Court to waive liability of adverse costs, private litigants under Part IV of the Competition and Consumer Act will be empowered to bring litigation without the crushing burden of enormous legal fees.

At an early stage of the court case, the private litigant will be able to request a ‘no adverse cost order’, preventing large legal fees of the defendant being transferred to the litigant. The judge will then weigh up the initial arguments and decide whether there is merit to the case. If merit is established, any liability for the defendant’s legal fees will be waived.

This will change the dynamics of small businesses and their representatives in the ability to bring private litigation. Those who misuse market power or seek to price fix amongst other uncompetitive practices will be subject to closer scrutiny. This will remove one of the biggest barriers to bringing litigation, the potential for adverse costs by powerful vested interests.

To assist in this process, a Labor Government will fund the Small Business Ombudsman to provide an initial assessment on whether a private litigant is likely to be granted a no adverse cost order. The representatives of small business private litigants will be able to submit their proposal to the Ombudsman and receive a professional opinion on the likelihood of success. While this will not be legally binding, the Ombudsman will assist small businesses better understand their prospects of successful action under the Competition and Consumer Act.