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

Mastercard Asia/Pacific Pte Ltd has applied for leave to appeal a decision of the primary judge which permitted the Australian Competition and Consumer Commission (ACCC) to rely on certain statistical information contained in publications issued by the Reserve Bank of Australia (RBA) under s 85A of the Reserve Bank Act 1959 (Cth). The ACCC alleges that Mastercard engaged in conduct that contravened the Competition and Consumer Act 2010 (Cth) by offering merchants discounted interchange rates on credit transactions on the condition that those merchants routed their dual network debits transactions through the Mastercard network. The dispute in this case hinges on whether the primary judge erred in concluding that s 85A of the Reserve Bank Act permitted the Court to take judicial notice of certain RBA information, which Mastercard claims is not "statistical information" within the meaning of the Act and thus not subject to judicial notice.

The court examined the statutory provisions and judicial interpretations of "judicial notice" and "statistical information" to determine whether the primary judge's decision was correct. Mastercard argued that the relevant information was not incontrovertible or reasonably open to question, which they contended disqualified it from being considered "statistical information" for the purposes of s 85A. The primary judge held that the RBA information could be judicially noticed because it met the statutory criteria. Mastercard's contention that the primary judge should have required the incontrovertibility of the information was rejected, as the court found the statutory language and its established legal context did not necessitate such a stringent condition.

In dismissing the application for leave to appeal, the court found that the primary judge's interpretation of s 85A was consistent with the statutory language and existing judicial precedents. The court held that there was no substantial injustice in refusing leave to appeal, as the primary judge's decision did not prevent Mastercard from challenging the facts underlying the RBA information at trial through appropriate evidence or submissions. Consequently, the application for leave to appeal was dismissed with costs.