11 Jul 2013

ACCC and AER clarify how they will resolve disputes in new Dispute Management Plan and Policy

The Australian Competition and Consumer Commission (ACCC), together with the Australian Energy Regulator (AER), have confirmed they will attempt to resolve any dispute as early as possible, and by the simplest and most cost-effective means, in a new Dispute Management Plan and Dispute Management Policy. These documents set out the approach of the ACCC and AER to the management and resolution of disputes, including court proceedings. The Plan and the Policy are designed to cover all litigation and disputes in which either the ACCC or the AER may become involved and address how the ACCC and the AER will conduct themselves in those matters.

So what have the ACCC and AER said they will do when taking legal action?

The Plan and Policy confirm that, where necessary, the regulators will take legal action when they consider that litigation is the most appropriate way to achieve enforcement and compliance objectives.

They also set out a basic commitment to the management of disputes in a "courteous, professional and respectful manner", as well as some basic principles by which the ACCC/AER will abide:

  • 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 statutory obligations;
  • to take genuine steps to resolve or clarify disputes both before and throughout any court or tribunal proceedings; and
  • to manage disputes in a transparent, fair and consistent manner.

The Policy goes a step further than these principles, and includes the statement that the regulators will manage disputes so as to uphold the Australian Public Service Commission Values of being impartial, committed to service, accountable, respectful and ethical, as well as the following complementary values:

  • Independent: pursue the interests of the Australian community, objectively and transparently;
  • Expert: make timely decisions based on evidence and rigorous analysis;
  • Strategic: make best use of resources taking considered and targeted action; and
  • Trustworthy: communicate honestly and directly and act respectfully.

ACCC and AER confirm they are bound by the model litigant rules

The Policy expressly confirms the regulators will act in accordance with the Legal Services Directions 2005, amongst other statutory rules, which include the directions to Commonwealth agencies commonly known as the "model litigant rules". Those rules contain an obligation on the Commonwealth and its agencies to act honestly and fairly in handling claims and litigation brought by or against the Commonwealth.

So what do these documents mean if you are engaged in a dispute with the ACCC?

You can expect the ACCC to satisfy the statutory obligations of a law enforcement agency, but in a way that meets the terms and objectives of the Plan and Policy.

You can expect the ACCC, consistent with its obligations in the Policy, to have provided the Plan and Policy to any external law firm instructed to act for it, and to have required that firm to deal with the matter in way that is consistent with terms of the Plan and Policy.

You can expect the ACCC to attempt to resolve any dispute as early as possible, and by the simplest and most cost-effective means that will achieve the outcome sought.

And, should the ACCC's conduct, or that of its staff or retained law firm, not be consistent with the Policy, there is a complaints process to be followed which provides for escalation to the CEO.

The Plan and Policy are simple documents, written in simple terms, and the message is clear: in disputes with the ACCC or AER, you can expect each agency to abide by the terms of the Plan and Policy and the values in them.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.