Melbourne Law School - Theses
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ItemSimple in theory, not so in proof : how antitrust markets are established by evidence in federal court proceedings in Australia( 2002)Definition of a relevant market is the first and an essential step involved in determining whether or not there has been a contravention of certain of the substantive prohibitions under Part IV of the Trade Practices Act 1974 (Cth). The concept of a `market' for this purpose is based on settled, essentially economic, principles. However, proving the existence of a market, as a matter of evidence, in legal proceedings has been and remains a complex and uncertain exercise. The objectives of this thesis are to examine and critically evaluate the way in which the proof of markets under the Act has been handled in litigation before the Federal Court over the last 28 years. The primary sources for the research are the judgements that have been handed down by the Federal Court over this period in cases in which market definition has been a contested issue. While there is an abundance of literature on the relevant principles and their application in major cases, there has been no in-depth or systematic consideration of the issues of evidence and proof raised by this issue. For the purposes of examining the approach taken to the proof of a market, four principal categories of evidence are identified in the thesis - industry evidence, consumer evidence, quantitative evidence and expert opinion evidence. Issues of both form and substance that have arisen and the use that has been made of each category of evidence are explored in detail. For the purposes of evaluating the approach that has been taken to the proof of a market, a test of purposiveness is applied in the thesis. The question is posed, in other words, whether proof of the market has been approached with a view to identifying the existence (or otherwise) of close constraints on the commercial conduct of the firm(s) in question in the proceeding. It is concluded that, of the four categories of evidence examined, industry evidence has been the most effective in the sense that it has had the greatest impact on findings made concerning the relevant market. Consumer evidence has been bedevilled by concerns as to admissibility and weight and has been regarded as being of limited relevance in any event. Quantitative evidence has generally been unavailable and when available has proven unpersuasive. Overcoming initial reservations, there have been efforts to maximise the value derived from expert opinion evidence, particularly that of economists. Nevertheless, as some of these efforts themselves attest, such evidence has taken the form of submission more than it has of evidence and accordingly its role has been limited. The emphasis that has been placed on industry evidence is consistent with a purposive approach to market definition. It is this evidence that best enables a court to identify the sources and the extent of the constraints operating on the firm(s) in question. However, as is argued in this thesis, there are several important respects in which the analysis of industry evidence could and, indeed, should be more rigorously undertaken. Such rigour is required to ensure that markets are defined in a manner that reflects commercial realities and ultimately therefore to ensure that the substantive prohibitions under the Act are properly enforced.
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ItemProbabilistic models of juridical proof( 2002)In the process of resolving disputes, courts are required to make findings of fact on the basis of incomplete evidence; courts have to reason with factual uncertainty. In this dissertation I argue that the uncertainty of juridical fact-finders has a probabilistic nature, and that probability theory is a useful tool for understanding and improving factual accuracy in juridical proof. I support this thesis by providing probabilistic analyses of the law governing criminal and civil standards and burdens of proof. Particular issues that I examine include: the difference between the civil and the criminal standards of proof; the variability of the civil and criminal standards; probabilistic considerations governing the allocation of burdens of proof; the role of the burden in resolving the fact-finder's higher-order uncertainty about the exact probabilistic strength of the evidence; modifications to the law of standards and burdens of proof in response to the difficulties of predictive proof; mechanisms by which the accumulation of doubt is managed where there is factual uncertainty with regard to more than one legal element; and the supposed legal requirement that evidence not only satisfy a probabilistic standard of proof, but also be of sufficient weight, completeness or detail. In my examination of these areas of evidence law, I find that, to a large extent, current principles of proof already comply with the requirements of probability theory. At only a few points does existing practice appear to depart from probabilistic principles. At these points, the question arises whether the law requires reform. I recognise two qualifications to the normative use of probability theory in juridical proof. First, the guidance that probability theory offers is limited to factual accuracy, whereas juridical proof has other concerns, such as due process. In prescribing reforms, it must be considered whether other goals are threatened. Secondly, in order for the reforms to be capable of implementation, they should not involve too radical a change from current practice; the prescriptive should be not be too distant from the descriptive. Despite these constraints, in this dissertation I draw a number of prescriptions from probability theory. These appear quite capable of implementation as they involve only incremental change from current practice, and can readily be expressed in natural language. I reject arguments that current differences between juridical proof and probability theory can be explained in terms of other goals of juridical proof. Factual accuracy is a major concern of juridical proof, and is not sacrificed lightly.