Mastercard Asia/Pacific Pte Ltd v Australian Competition and Consumer Commission

A INTRODUCTION AND BACKGROUND

1. Historically at least, single judges of this Court have been guided by the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 (at 323), that if a tight rein is not kept upon the interference with orders of judges at first instance in matters of practice and procedure, the result will be "disastrous to the proper administration of justice" and further, that this caution exercised by appellate courts in reviewing decisions pertaining to practice and procedure includes rulings on evidence: Rich v Australian Securities & Investments Commission [2005] NSWCA 233 (at [28] per Basten JA). This approach can now be seen as being consistent with the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which requires the power to grant leave must be exercised in a way which best facilitates the just resolution of disputes accordingly to law, and as quickly, inexpensively and efficiently as possible: Nationwide News Pty Limited v Rush [2018] FCAFC 70 (at [2]-[4] per Lee J, with whom Allsop CJ and Rares J agreed).
2. Additionally, consistently with the facilitation of the overarching purpose, it is well established that an applicant must usually show that: (1) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (2) supposing the decision to be wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398-399 per Sheppard, Burchett and Heerey JJ).
3. The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 (at 38 [5] per Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 (at 4 [3] per Jagot, Yates and Murphy JJ).
4. These principles inform the determination of this application for leave to appeal brought by Mastercard Asia/Pacific Pte Ltd and Mastercard Asia/Pacific (Australia) Pty Ltd (together, Mastercard) against orders made by the primary judge that pursuant to s 192A of the Evidence Act 1995 (Cth) (EA), judicial notice be taken of particular statistical information contained in Reserve Bank of Australia (RBA) publications to which s 85A of the Reserve Bank Act 1959 (Cth) (RBA Act) applied.
5. The reasons for making those orders are set out by the primary judge in Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd [2024] FCA 999 (judgment or J).
6. It is unnecessary to cavass the background to the proceedings in detail, which was set out by the primary judge (at J [1]-[5]). In short, the Australian Competition and Consumer Commission (ACCC) alleges, among other things, that Mastercard offered certain merchants discounted interchange rates on credit transactions on the condition that those merchants routed their dual network debits transactions through the Mastercard network. It is alleged a substantial purpose of this conduct was to harm the competitive process by hindering those merchants from acquiring debit processing services from eftpos Payments Australia Limited (eftpos) and thereby contravened ss 45, 46 and 47 of the Competition and Consumer Act 2010 (Cth).
7. Hence it is part of the ACCC's case that Mastercard sought to secure business from merchants even where its scheme fees and interchange rates were higher than those offered by eftpos (Amended Statement of Claim (ASOC) (at [62(b)])). The allegation scheme fees, and interchange rates were higher than those offered by eftpos, although disputed, is not determinative (in the sense that it is accepted that the ACCC's case could fail for a variety of other reasons even if ACCC established this fact) and the precise amount by which scheme fees and interchange rates were higher is not said by ACCC to be decisive to its case.
8. On 17 July 2024, the ACCC filed an interlocutory application (interlocutory application) in which it sought an advance ruling pursuant to s 192A of the EA as to whether the Court can and should take judicial notice of certain RBA information identified in Annexure A to the interlocutory application (relevant information), pursuant to s 85A of the RBA Act (to which I will return shortly). Mastercard contended in summary that the relevant information (or at least some of it) was not "statistical information" within the meaning of s 85A because it is not incontrovertible or at least reasonably open to question, and thus no judicial notice could be taken of the information. The primary judge made orders broadly in the terms sought by the ACCC.
9. Mastercard, by this application, contends that the primary judge erred in concluding that s 85A of the RBA Act permitted the Court to take judicial notice of the relevant information.

B THE PRIMARY JUDGE'S REASONING

1. Before turning to the contentions of Mastercard, it is necessary to pay close attention to the terms of his Honour's reasoning.
2. The primary judge (at J [18]-[19]) set out s 85A of the RBA Act and made the following observations: [18] Section 85A itself provides as follows: 85A Judicial notice of statistical information published by Bank (1) All courts, judges and persons acting judicially are to take judicial notice of statistical information contained in a publication issued in the name of, by, or under the authority of, the Bank. (2) A publication purporting to be issued in the name of, by, or under the authority of, the Bank is to be taken, in any judicial or other proceeding, to have been so issued unless the contrary is proved. [19] It can readily be seen that, before judicial notice can be taken of any information pursuant to s 85A of the Reserve Bank Act, two limbs or requirements must be satisfied: first, the information must be "statistical information"; and second, the information must be "contained in a publication issued in the name of, by, or under the authority of" the Reserve Bank. But what is "statistical information" in that context? And what is meant by "judicial notice" in that context? Does "judicial notice" import or imply another necessary limb or requirement to s 85A, as Mastercard effectively submitted, to the effect that the statistical information must be incontestable?
3. With respect to the second limb the subject of this application, his Honour (at J [28]-[32]) rejected Mastercard's contention that given that s 85A employs the concept of "judicial notice", and given that judicial notice under s 144 of the Evidence Act 1995 (Cth) (EA) effectively codified the doctrine of judicial notice, it must follow that judicial notice can only be taken of statistical information under s 85A if the statistical information in question was "not reasonably open to question". The primary judge reasoned that although the section must be construed in the light of the existing doctrine of judicial notice, the doctrine is not limited to common law principles effectively codified by s 144 of the EA, which relieved parties of the burden of proving notorious facts or matters of common knowledge. Rather, as the primary judge observed (at J [29]): the doctrine of judicial notice broadly concerns the various situations or circumstances in which a court may take "notice" of a fact, or declare "that it will find that the fact exists, or direct the jury to do so, although the existence of the fact has not been established by evidence": Heydon J D, Cross on Evidence (14th Australian edition, Lexis Nexis Australia, 2024) at [3010]. Judicial notice simply means instances where "the Court even apart from Statute may require no evidence at all" in respect of a particular fact: Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 152 (Isaacs J). It is an exception to the general rule that information or facts must be proved by evidence.
4. His Honour concluded (at J [31]) that there is no reason in principle why legislation cannot create new or additional classes or species of facts in respect of which judicial notice can or must be taken. Nor, the primary judge noted, is there any reason in principle why statutory provisions, like s 85A, must be "tethered to the class or species of judicial notice now covered by s 144 of the [EA], or to the requirement in that provision that the facts in question not be 'open to question'". In short, s 85A states "no more and no less" that "notice" is to be taken of certain statistical information or that the court will declare that it will accept that the statistical information in question was collected and published by the Reserve Bank, without requiring a party to adduce evidence of or in respect of that fact (at J [31]). Accordingly, the primary judge rejected Mastercard's contention that s 85A imposes an additional requirement or limitation that the statistical information must be incontestable or not open to question.
5. In doing so, his Honour gave a convenient example (at J [39]-[41]): [39] An example may assist in illustrating this point. One of the items of statistical information that is the subject of the ACCC's application (Item 12) is a table headed "Table 4: Card Surcharges Paid - 2016". That table includes data recording that in 2016 card surcharges were paid in 3.4% of all card payments, 1.1% of eftpos card payments and 3.2% of MasterCard/Visa debit card payments. Accepting, for present purposes, that the table could accurately be said to be statistical information contained in a Reserve Bank publication, the Court can take judicial notice of that information. The effect of taking judicial notice of that statistical information is that the Court will find that the relevant data collected, classified and published by the Reserve Bank records that in 2016 card surcharges were paid in 3.4% of all card payments, 1.1% of eftpos card payments and 3.2% of MasterCard/Visa debit card payments. [40] That is not to say that judicial notice is taken of the underlying facts - that in 2016 card surcharges were in fact paid in 3.4% of all card payments, 1.1% of eftpos card payments and 3.2% of MasterCard/Visa debit card payments. The Court will not necessarily find that to be the case. It would be open to Mastercard, should it wish and be able to do so, to adduce its own statistical information in relation to surcharges paid in respect of card payments in 2016, or adduce evidence or make submissions that tend to undermine the validity, accuracy or cogency of the data collected and published by the Reserve Bank. I can see no reason in principle why such submissions could not be advanced, or why such evidence could not be led. Moreover, if persuasive submissions were advanced, or cogent evidence was adduced and accepted by the Court, Mastercard might then be able to persuade the Court to find that the Reserve Bank's data is not cogent or reliable and accordingly not find that in 2016 card surcharges were in fact paid in 3.4% of all card payments, 1.1% of eftpos card payments and 3.2% of MasterCard/Visa debit card payments. [41] That, of course, is an entirely hypothetical example. It nevertheless serves to demonstrate why Mastercard's submissions based on the consequences of the giving of judicial notice to statistical information pursuant to s 85A of the Reserve Bank Act cannot be accepted. Mastercard will not be precluded in any way from adducing evidence, or making a submission, that tends to rebut or undermine the data or numerical facts in the statistical information in question. It may, for example, adduce its own statistical information, or adduce evidence, or point to surrounding information in the Reserve Bank publications in question, that may call into question the validity, or voracity of the published data, or its relevance or significance. (Emphasis added)
6. At the conclusion of the judgment, his Honour returned to this topic in the course of declining to include a notation on his orders to the effect that Mastercard would not be precluded or prevented from adducing evidence, or making submissions, that may rebut or undermine the relevant information. His Honour remarked (at J [64]) that he had made it abundantly clear that Mastercard is not precluded from adducing any such evidence or making any such submissions and that any issues concerning the relevance of the statistical information, or the weight to be afforded to it, or the inferences or conclusions that may flow from it, will be considered and determined at the final hearing.

C MASTERCARD'S SUBMISSIONS AND PROPOSED GROUNDS OF APPEAL

C.1 Introduction

1. As would already be obvious, the central question on this application concerns the proper construction of s 85A. It is also said to raise a further question as to whether judicial notice, as that statutory notion and doctrine are properly understood, can produce an outcome whereby a court takes notice of the fact that X said Y, and states further that, should evidence rebutting Y not be led by a party, the court may proceed to find fact Y. Mastercard says it cannot, and to do so impermissibly converts judicial notice into something akin to a presumption or a prima facie case.
2. As noted earlier, Mastercard's primary contention is that the primary judge erred in concluding that judicial notice be taken of the relevant information contained in Annexure A to the interlocutory application. The relevant information includes the following:
3. A table containing a purported comparison between average costs of routing debit transactions to eftpos on the one hand, and Mastercard on the other hand (Foster Affidavit (at 49, Item 5)). The evidence discloses that Mastercard has in the past publicly raised concerns about the reliability and the validity of that information. Further, it contends the document itself (in the notes tab) records that it only contains estimates, and that they are affected by how acquirers (not scheme operators like Mastercard) charge merchants.
4. Information relating to the surcharges applied by merchants (Foster Affidavit (at 51, Item 13)). Mastercard pleads that merchants applied a surcharge to the use of certain payment schemes to discourage the use of those cards, and that this is a matter that Mastercard took into account when setting interchange rates. In other words, the ability of merchants to apply surcharges acted as a competitive constraint on Mastercard and other scheme providers. Mastercard submits that item 13 will be relied upon by the ACCC to suggest that transactions to which a surcharge is applied are de minimis such that this is not a real constraint, notwithstanding item 13 comprises surveys (and not data) conducted of around 1,500 consumers. Mastercard disputes the reliability and validity of that information.
5. In the light of the nature of the relevant information, Mastercard contends further that no authority supports the proposition that taking notice of a derivative fact (X published Y) creates a presumption or prima facie case in respect of a different, underlying fact (Y is correct). It is said that central to the primary judge's reasoning is that the relevant information is reasonably open to question and effectively invites a challenge to those facts.

C.2 Proposed Grounds of Appeal

1. More specifically, five proposed grounds of appeal are advanced by Mastercard. It is appropriate, given the nature of this application, to detail them only briefly.

Grounds 1 and 2

1. Grounds 1 and 2 both involve the proposition that s 85A must be construed in the context of, and having regard to, the existing doctrine of judicial notice.
2. In short, as noted earlier, Mastercard contends that judicial notice cannot extend beyond facts that are not reasonably open to question and can be taken only of incontrovertible facts. This is because where a court takes judicial notice of a fact, the tribunal of fact is not permitted to depart from that fact and, if there is a jury, the jury must be directed that they take the fact as concluded. The common thread of not being reasonably open to question is why judicial notice avoids wasted expenditure (at J [30]). It follows that there can be no new "species" of judicial notice (at common law, under the Evidence Act, under s 85A or otherwise) that omits the basal requirement that the facts noticed are not reasonably open to question.

Ground 3

1. This ground relates to Mastercard's contention explained above (at [18]) that s 85A operates to impose an evidentiary burden, or prima facie standard. Judicial notice, it is said, is not akin to a rebuttable presumption. A fact judicially noticed cannot be contradicted. The primary judge's approach, it is submitted, gives no content to the words "judicial notice".

Grounds 4 and 5

1. Ground 4 raises a separate question in relation to items 12 to 26 of the relevant information. This is the survey "data". Similarly, ground 5 relates to items 27 to 29. Mastercard submits that, on any view, this information comprising those items cannot qualify as "statistical information" within the meaning of s 85A.

C.3 Contentions of Mastercard as to Prejudice

1. As to issues of prejudice, Mastercard submits that the implications of the judgment for these proceedings are "profound" for the following reasons.
2. First, Mastercard will be subject to an evidentiary burden in relation to a broad range of matters that bear upon the outcome of the proceedings, after lay evidence has been completed. The trial is to commence on 24 March 2025 with an estimated length of six weeks. Detailed case management orders have been made in respect of the filing of evidence, including expert evidence, which I am told is due by 29 November. As presently advised, Mastercard wishes to adduce opinion evidence in answer to an expert report filed on behalf of the ACCC by Dr Frankel. The current orders of the Court require the filing of material by way of reply from the ACCC and thereafter for a conclave and joint report prior to the commencement of the trial. It is common ground that Dr Frankel's evidence relies upon the information subject of the advance ruling. Although Mastercard accepts that it has a forensic choice to either object to Dr Frankel's evidence pointing to various flaws that it says exist in relation to the relevant information, the consequence of the advance ruling, as a practical matter, requires Mastercard to undertake the not inconsiderable expenditure of engaging an expert to produce a report.
3. Secondly, and relatedly, any responsive report will be prepared in circumstances where Mastercard faces significant challenges in obtaining the necessary information to dispute cogently the representations made in the relevant information. This is, at least in part, a function of the limited time Mastercard has to put on its expert evidence, but is also related to the effect of s 79A of the RBA Act, which prevents Mastercard from having access to information produced on a compulsory basis, in respect of which it is necessary for it to do a "deep dive" to instruct its expert.
4. Thirdly, senior counsel for Mastercard, Dr Higgins SC, raised the possibility of there being an application for an adjournment of the start of the trial in the event that Mastercard is required to put on expert evidence of the type it considers necessary in the light of the advance ruling. There was unchallenged evidence from the solicitor for Mastercard that the effect of the judgment is that Mastercard will be required to adduce further lay evidence (and/or make submissions) if it wishes to challenge the underlying facts contained in the relevant information. Further, it is said that the status of the relevant information has the potential to affect any expert's opinion and will have implications for the evidence adduced at trial on key issues in dispute in the proceedings.

D CONSIDERATION

1. Before going further, I should say something about the nature of this application.
2. As a consequence of the purported prejudice identified by Mastercard, it requested that this application for leave to appeal and its notice of appeal (if leave be granted) be heard and determined "at the earliest opportunity convenient to the Court and the parties". I attempted to facilitate this course and proceeded to hear the application at the first date convenient to the parties. Additionally, notwithstanding the detailed and cogent submissions advanced by each party on the application, given the time constraints involved, I have considered it appropriate to proceed to give ex tempore reasons.
3. Needless to say, together with the very nature of an application for leave to appeal as opposed to a substantive appeal, this means that I will express my views in a relatively conclusory way. I hasten to add, however, that I have had the benefit of being able to consider in detail the parties' written submissions and have heard argument which has taken half a day.
4. It is plain that the primary judge was faced with the practical effect of a provision, being s 85A, which has been the subject of limited judicial exposition. The section employs the concept of "judicial notice" which is a concept that has developed in the common law for centuries and is now the subject of statutory codification by dint of s 144 of the EA. Mastercard is correct to point to the fact that the purpose of judicial notice is to relieve the parties of the burden of proving notorious facts or matters of common knowledge. Put another way, the concept is usually directed to relieving parties to litigation of the necessity to incur the trouble and expense of proving facts which are, in effect, incontestable.
5. As noted earlier (at [14]-[15]), the primary judge's ruling provides for a trial where a fact, in respect of which judicial notice is to be taken, can be the subject of the adduction of evidence or submissions that tend to undermine the validity, accuracy or potency of the relevant information. As I said to senior counsel for the ACCC, Mr Arnott SC, on one view the ruling operates no differently from a practical decision whereby a business record has been adduced containing certain representations of an asserted fact and, in the absence of any contradictory evidence, the tribunal of fact is likely to find the fact proved on the balance of probabilities. This is, however, somewhat of an oversimplification, as the relationship between the RBA Act and the EA means that the Court is required to take judicial notice of the asserted fact and, accordingly, there is no room for the operation of the discretionary exclusions under Pt 3.11 of the EA.
6. On any available view of the proper construction of s 85A, it is not in contest that it has some work to do. How that section relates to other provisions of the EA, such as those contained in Chapter 4 of the EA, is unnecessary to consider for the purposes of this application. Nothing in these reasons should be taken as an expression that the primary judge erred in construing s 85A. With that said, it is plain that the issues raised on the application are novel and are of at least some importance. I consider that it would be appropriate to proceed on the basis that the grounds raised by Mastercard are arguable, and although that point was not conceded by the ACCC, it is fair to say that by the close of oral submissions, the first Décor limb was not the focal point of its contentions.
7. The real point seems to me to go back to the observations by which I commenced these reasons.
8. The accumulated wisdom and experience of judges since the introduction of statutory appeal rights has been to exercise real caution before interfering with the decisions and rulings of judges at first instance on matters of practice and procedure. It might be thought that these considerations should have acquired greater force since the introduction of case management imperatives in Pt VB of the FCA Act. Even if I was to assume that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal, the difficulty facing Mastercard is establishing the extent of prejudice required by the second Décor limb: that is, supposing the decision to be wrong, substantial injustice would be occasioned if leave was refused.
9. The primary judge was at pains to make clear that the relevant information, although admissible, can be (and will be) the subject of countervailing evidence and submissions as to its weight. His Honour did not make any rulings about other aspects of the evidence which may rely upon the relevant information, including as to the admissibility and weight of opinions expressed as to the cogency of the relevant information. All these matters are quintessentially for the trial judge to hear and determine.
10. Further, even if I was to assume that the relevant information was decisive in proving the allegation that "scheme fees and interchange rates for debit card transactions … were higher than the scheme fees and interchange rates that EPAL was offering or making available through Eftpos for processing transactions made using dual Mastercard-Eftpos DNDCs" (ASOC (at [62(b)])), there is no basis for me to conclude that this will necessarily be determinative in resolving the proceedings.
11. As I indicated to Dr Higgins, it is open for Mastercard to file a notice to admit facts by which it puts forward its contentions as to what the evidence it seeks to procure is likely to demonstrate as to the nature of the relationship between the scheme fees and interchange rates offered by eftpos and Mastercard. If it is justified in resisting the factual contentions of the ACCC, then no doubt an application could be made by Mastercard for a costs order (including a special costs order) in respect of that factual issue. This is not a case where a litigant is being forced by a ruling to expend costs it cannot afford, or where there is any doubt as to the other party's capacity to pay an order for costs should the position of the countervailing party be justified at trial. Even if the issue was in some way determinative, there is no fetter following the refusal of an application for leave to appeal for the matters raised by Mastercard to be agitated upon an appeal after any final orders brought by way of right. Accordingly, I am not satisfied that Mastercard would suffer substantial injustice in the event leave to appeal was refused in accordance with the second Décor limb.

E CONCLUSION

1. The application for leave to appeal must be dismissed with costs. I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.