FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd [2024] FCA 999

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 192A of the Evidence Act 1995 (Cth), judicial notice is taken of the statistical information contained in publications issued in the name of, by, or under the authority of the Reserve Bank of Australia to which s 85A(1) of the Reserve Bank Act 1959 (Cth) applies, which statistical information comprises items 1 to 29 of Annexure A to the Applicant’s interlocutory application dated 15 July 2024 (and the methodology and explanatory notes associated with that statistical information and published with it).

2.    The time for the parties to seek leave to appeal these orders is not to commence until the Court has published its reasons for judgment in respect of order 1.

3.    The costs of the Applicant’s interlocutory application dated 15 July 2024 be the Applicant’s costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The Australian Competition and Consumer Commission (ACCC) has commenced proceedings in this Court alleging, among other things, that Mastercard Asia/Pacific Pte Ltd and Mastercard Asia/Pacific (Australia) Pty Ltd (collectively Mastercard) contravened s 46(1) of the Competition and Consumer Act 2010 (Cth). Mastercard denies the ACCC’s allegations and is defending the proceeding. The trial is listed 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.

2    The ACCC filed an interlocutory application in which it sought an advanced ruling from the Court, pursuant to s 192A of the Evidence Act 1995 (Cth), or s 23 of the Federal Court of Australia Act 1976 (Cth), in respect of the question whether the Court can and should take judicial notice of certain specified information pursuant to s 85A of the Reserve Bank Act 1959 (Cth). That provision provides that “[a]ll 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 [Reserve] Bank”. The ACCC contended, in summary, that the information specified in its interlocutory application was statistical information contained in publications issued by, or under the authority of, the Reserve Bank for the purposes of s 85A of the Reserve Bank Act.

3    Mastercard did not contend that it was not open to the Court to give an advanced ruling in respect of the question whether the Court could or should take judicial notice of the information identified in the ACCC’s interlocutory application. It contended, however, that the information in question, or at least some of it, was not “statistical information” for the purposes of s 85A of the Reserve Bank Act, primarily because it was contested and contestable, or at least reasonably open to question.

4    It was necessary for the Court to hear and determine the ACCC’s interlocutory application as a matter of relative urgency. That was because the case management orders made by the Court required the ACCC to file its expert evidence by 6 September 2024 and the ACCC proposed to brief its expert witness or witnesses with the disputed information.

5    In those circumstances, at the conclusion of the hearing of the interlocutory application on 14 August 2024, I made orders largely in the terms ultimately sought by the ACCC. I indicated that I would publish my reasons for judgment at the earliest opportunity. These are my reasons. Given the need to publish the reasons with a degree of urgency, they are perhaps shorter than they otherwise may have been. I have nevertheless endeavoured to address the main thrust and substance of the parties’ submissions, if not their fine detail, subtlety and nuance.

The information in question

6    The ACCC contended that judicial notice can and should be taken of 29 items as set out in Annexure A to the interlocutory application. The information can be divided into three categories.

7    The first category of information consists of several spreadsheets published monthly and quarterly by the RBA. The spreadsheets contain data relating to Australia’s payments systems. This category comprises the following items (Items 1 to 11) in Annexure A to the ACCC’s interlocutory application:

(a)    A spreadsheet entitled “C1: Credit and Charge Cards – Seasonally Adjusted Series” (Item 1);

(b)    A spreadsheet entitled “C1.2: Credit and Charge Cards – Original Series – Personal and Commercial Cards” (Item 2);

(c)    A spreadsheet entitled “C1.3: Credit and Charge Cards – Market Shares of Card Schemes” (Item 3);

(d)    A spreadsheet entitled “C2: Debit Cards – Seasonally Adjusted Series” (Item 4);

(e)    A spreadsheet entitled “C3: Average Merchant Fees for Debit, Credit and Charge Cards” (Item 5);

(f)    A spreadsheet entitled “C4: ATMs Seasonally Adjusted Series” (Item 6);

(g)    A spreadsheet entitled “C4.1: ATMs Original Series” (Item 7);

(h)    A spreadsheet entitled “C5: Cheques – Seasonally Adjusted Series” (Item 8);

(i)    A spreadsheet entitled “C5.1 – Cheques Original Series” (Item 9);

(j)    A spreadsheet entitled “C6: Direct Entry and NPP – Seasonally Adjusted Series” (Item 10); and

(k)    A spreadsheet entitled “C6.1: Direct Entry and NPP – Original Series” (Item 11).

8    It should perhaps be noted in this context that the Reserve Bank has a separate Payments Systems Board which is responsible for its payments systems policy: see ss 8A and 10B of the Reserve Bank Act. The payments system, in general terms, refers to the arrangements which allow consumers, business and other organisations to transfer funds usually held in an account at a financial institution to another. It includes payments systems such as those used by or involving credit and debit cards.

9    The second category is statistical information contained in Research Discussion Papers (RDPs) published by the RBA about the results of its triennial Consumer Payments Survey and information in the Statistical Appendix and Supplementary Information to those papers. This category includes Items 12 to 26 in Annexure A the interlocutory application.

10    Items 12 to 16 derive from RDP 2017-04 entitled “How Australians Pay: Evidence from the 2016 Consumer Payments Survey” dated July 2017. Item 12 is contained in the body of that paper and is a table entitled “Table 4: Card Surcharges Paid – 2016” (Item 12). Items 13 to 16 are contained in the Statistical Appendix to that paper and comprise:

(a)    A table entitled “Table 8: Surcharges paid on card payments, by merchant category” (Item 13);

(b)    A table entitled "Table 9: Per cent of the number of card payments where a surcharge was paid, by age and household income” (Item 14);

(c)    A table entitled “Table 1a: Per cent of the number of payments, by merchant category and payment method” (Item 15);

(d)    A table entitled “Table 1b: Per cent of the value of payments, by merchant category and payment method” (Item 16);

11    Items 17 to 20 are found in the Statistical Appendix and the Supplementary Information to RDP 2020-06 entitled “Consumer Payment Behaviour in Australia: Evidence from the 2019 Consumer Payments Survey” dated September 2020. Those items comprise:

(a)    A table entitled “Figure 20: Contactless Card Payments; Share of number of in-person payments” in the Supplementary Information to the RDP (Item 17);

(b)    A table entitled “Table 1a: Per cent of the number of payments, by merchant category and payment method” in the Statistical Appendix to the RDP (Item 18);

(c)    A table entitled “Table 1b: Per cent of the value of payments, by merchant category and payment method” in the Statistical Appendix to the RDP (Item 19); and

(d)    A table entitled “Table 8: Percent of the number of card payments where a surcharge was paid, by age and household income” in the Statistical Appendix to the RDP (Item 20).

12    Items 21 to 26 derive from RDP 2023-08 entitled “The Evolution of Consumer Payments in Australia: Results from the 2022 Consumer Payments Survey” dated November 2023. Item 21 is contained in the body of that paper and is a table entitled “Table 4: Card Surcharges Paid”. Items 22 to 26 are found in the Statistical Appendix and the Supplementary Information to the paper and comprise:

(a)    A table entitled “Figure 1: Cash and Card Payments; Share of number of payments” in the Supplementary Information to the RDP (Item 22);

(b)    A table entitled “Table 8: Per cent of the number of card payments where a surcharge was paid, by age and household income” in the Statistical Appendix to the RDP (Item 23);

(c)    A table entitled “Table 1a: Per cent of the number of payments, by merchant category and payment method” in the Statistical Appendix to the RDP (Item 24);

(d)    A table entitled “Table 1b: Per cent of the value of payments, by merchant category and payment method” in the Statistical Appendix to the RDP (Item 25); and

(e)    A table entitled “Figure 21: Card Payments by Channel; Share of number of in-person card payments” in the Supplementary Information to the RDP (Item 26).

13    The third category is statistical information contained in a published RBA Bulletin, which include Items 27 to 29 in Annexure A to the interlocutory application. Those items are contained in the RBA Bulletin entitled “The Cost of Card Payments for Merchants” dated September 2022 and comprise:

(a)    A graph entitled “Graph 4: Merchants Accounts by Size” (Item 27);

(b)    A graph entitled “Graph 6: Pricing Plans by Merchant Size” (Item 28); and

(c)    A graph entitled “Graph 8: Cost of Acceptance by Merchant Size” (Item 29).

14    Each of the items of statistical information consists of a spreadsheet, table or graph which contains or depicts figures along with a brief description of the subject matter or what those figures record, represent or depict.

Proper construction of 85A of the Reserve Bank Act

15    It is well established (so much so that no authority need be cited) that the task of statutory construction begins and ends with a consideration of the text, but that the statutory text must be considered in its appropriate context, including the legislative history and the “mischief” or purpose which may be discoverable by the legitimate use of extrinsic material.

16    Section 85A of the Reserve Bank Act is in Pt VIII of that Act which contains various miscellaneous provisions. It was inserted into the Reserve Bank Act in 1997: see item 5 of Schedule 13 to the Financial Laws Amendment Act 1997 (Cth). It was inserted in the Act after s 85 which provided that “[a]ll courts, judges and persons acting judicially shall take judicial notice of the seal of the Bank affixed to a document and shall presume that it was duly affixed”.

17    The Explanatory Memorandum to the Financial Laws Amendment Bill 1996 (Cth) provided as follows in relation to item 5 of Schedule 13 (i.e. proposed s 85A):

This item permits courts to take judicial notice of data published in the name of, by, or under the authority of the Reserve Bank. This will save Reserve Bank officers from the time consuming exercise of preparing affidavits (concerning, for example, historical interest and exchange rate data) for use in litigation that does not concern the Reserve Bank.

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?

What is “statistical information”?

20    The expression “statistical information” is not defined in the Reserve Bank Act. Nor is it defined in any cognate legislation. The meaning of the expression, and the construction of s 85A of the Reserve Bank Act generally, has also received little authoritative consideration in any prior decision of this or any other superior court. There is nothing in the statutory text to suggest that the words “statistical” and “information”, or the compound expression “statistical information”, should be given anything other than their or its ordinary meaning.

21    The online edition of the Macquarie Dictionary defines “statistical” as meaning: “of or relating to statistics; consisting of or based on statistics”. “Statistics” is defined as meaning: (construed as singular) “the science which deals with the collection, classification and use of numerical facts or data bearing on a subject or matter” and (construed as plural) “the numerical facts and data themselves”. The word “information” is self-evidently a word which may have a wide variety of meaning depending on the context in which it is used. The Macquarie Dictionary defines “information” as relevantly including “knowledge on various subjects, however acquired”. The relevant context in which “information” is used here is as part of the compound expression “statistical information”. The context would tend to suggest that the word “information” in the compound expression means knowledge about or relating to statistics, or more particularly knowledge about or relating to the statistics in question.

22    In its submissions, the ACCC referred to the use of the expression “statistical information” in the Census and Statistics Act 1905 (Cth), though again that Act contains no definition of the expression. The ACCC also referred to the discussion concerning the various types of statistics which appears on the website of the Australian Bureau of Statistics. I am, however, not persuaded that the use of the expression in other legislation, or definitions employed in other contexts, greatly assists in determining the meaning of the expression in the context of the Reserve Bank Act.

23    In all the circumstances, I would construe the expression “statistical information” as meaning, in essence, numerical facts and data, along with information or knowledge pertaining to the numerical facts and data to which it is necessary to have regard in order to understand what the numerical facts and data record. That may include information concerning the method by which the numerical facts and data was collected, collated and classified. If it did not include such information, the numerical facts and data would in many cases be difficult to understand or interpret. That would tend to undermine the apparent purpose of s 85A of the Reserve Bank Act. Statistical information would not, however, include narrative statements of opinion, inference or conclusion said to flow from the numerical facts or data.

Context – “judicial notice”

24    Mastercard submitted that, in construing s 85A of the Reserve Bank Act, the relevant context included the body of law concerning the doctrine of judicial notice, including the kinds of matters of which judicial notice is typically taken.

25    In that regard, Mastercard placed considerable reliance on s 144 of the Evidence Act, which provides as follows:

144     Matters of common knowledge

(1)     Proof is not required about knowledge that is not reasonably open to question and is:

(a)     common knowledge in the locality in which the proceeding being held or generally; or

(b)     capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2)     The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3)     The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4)     The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

26    In Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) ALJR 394 it was said (by Gleeson CJ, McHugh, Hayne and Heydon JJ at [17]) that “there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW)”. It may be noted that this statement was limited to the continuing operation of the common law doctrine of judicial notice “strictly so called”. As will be explained shortly, that would appear to be a reference to that part of the common law doctrine of judicial notice which concerned judicial notice of notorious facts or matters of common knowledge. The issue in Gatellaro was whether the proposition that Westpac used a standard form of guarantee was common knowledge in the locality in which the proceeding was held, or generally.

27    Mastercard submitted that, given that s 85A of the Reserve Bank Act employs the concept of “judicial notice”, and given that judicial notice under s 144 of the Evidence Act 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”. It equally followed, so it was submitted, that because it “is not open to a judge to use s 144 of the Evidence Act to ‘inform’ him or herself of matters in respect of which reasonable minds might differ” (McGregor v McGregor (2012) 47 Fam LR 498; [2012] FamCAFC 69 at [74]), it was also not open to the Court to inform itself in relation to statistical information under s 85A of the Reserve Bank Act if “reasonable minds might differ” in respect of that information. Indeed, Mastercard went so far as to submit (at least in its written submissions) that judicial notice could not be taken of any statistical information pursuant to s 85A of the Reserve Bank unless the information satisfied all the requirements of s 144 of the Evidence Act.

28    I do not agree with Mastercard’s submissions in that regard.

29    It may readily be accepted that s 85A of the Reserve Bank Act should be construed in the context of and having regard to the existing doctrine of judicial notice. It would otherwise be difficult to give any sensible meaning to the words “judicial notice” that are employed in the section. The doctrine of judicial notice, however, is not limited to the common law principles, effectively codified by s 144 of the Evidence Act, which relieved parties of the burden of proving notorious facts or matters of common knowledge. Rather, 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.

30    As the learned author goes on to point out in Cross on Evidence, while the doctrine of judicial notice in its “classical application” operates to “relieve the parties of the of the burden of proving notorious facts”, there are other “general classes of proofs which … have been conventionally described as judicial notice”: Cross on Evidence at [3010]. The other general classes of judicial notice include judicial notice of “certain state matters, - governmental, constitutional, administrative, political, international and diplomatic” and judicial notice, at both common law and by statute, of a “myriad of official signatures, certificates and other governmental documents”: Cross on Evidence at [3010]. The rationale or underlying purpose of the doctrine in all its applications is “to increase efficiency, and therefore avoid wasting the time of the court, the parties and the witnesses who need not be called, and to save the state and the parties expense”: Cross on Evidence at [3001].

31    There is in my view 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 is there any reason in principle why statutory provisions, like s 85A of the Reserve Bank Act, must be tethered to the class or species of judicial notice now covered by s 144 of the Evidence Act, or to the requirement in that provision that the facts in question not be “open to question”. In stating that “judicial notice” is to be taken of certain “statistical information”, s 85A is stating no more and no less than that a court is to take “notice” of that statistical information, or 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. There is no additional requirement or limitation that the statistical information must be incontestable or not open to question.

32    I should also note in this context that it is largely immaterial that the Explanatory Memorandum to the Bill which, when enacted, inserted s 85A into the Reserve Bank Act, referred to interest rates and exchange rates as examples of the types of statistical information that might be covered by the provision. It may perhaps be accepted that published data concerning interest and exchange rates is not reasonably open to question. That provides no contextual support for Mastercard’s contention that judicial notice under s 85A of the Reserve Bank Act may only be given to statistical information that is not reasonably open to question. Interest and exchange rates were plainly only referred to in the Explanatory Memorandum by way of example. There is no textual or contextual support for the proposition that the statistical information covered by s 85A is limited to those particular categories or types of statistical information. Nothing said in the Explanatory Memorandum suggests that only statistical data that is incontestable or not open to question may be the subject of judicial notice.

33    Mastercard also contended that the relevant contextual considerations included that, in its submission, once a court takes judicial notice of a fact, it is not open to a party to challenge, or adduce evidence which contradicts, that fact. Mastercard also pointed out that, once the requirements of s 85A are satisfied, the Court is required to take judicial notice of the statistical information in question. There is no discretion involved. In Mastercard’s submission, those contextual considerations provide an additional reason for construing s 85A of the Reserve Bank Act as being limited to statistical information which is not contested or contestable. It would, it was submitted, be unfair or prejudicial to Mastercard if the Court was required to take judicial notice of what Mastercard claimed was contested or contestable statistical information because it would not be able to challenge or dispute that information, or adduce its own statistical information in respect of the relevant facts in issue.

34    I do not agree with that submission.

35    It might perhaps be accepted that, once judicial notice is taken of knowledge pursuant to s 144 of the Evidence Act, there may be no sound basis upon which to receive rebutting evidence. That is because, before judicial notice is taken of knowledge pursuant to s 144 of the Evidence Act, the Court would need to be satisfied that the relevant knowledge is not reasonably open to question and is either a matter of common knowledge, or capable of being verified by reference to a document the authority of which could not reasonably be questioned. It is conceptually difficult to see how, having been satisfied of those matters, the Court could then admit rebutting evidence: cf. at common law, Auckland City Council v Hapimana [1976] 1 NZLR 731 at 733. Indeed, it is difficult to see how that issue could even arise. If the opposing party had evidence which tended to rebut the knowledge in question, that evidence would no doubt be adduced on the voir dire, pursuant to s 144(4) of the Evidence Act, in respect of whether the requirements in s 144 had been satisfied. That said, if the opposing party only came into possession of the rebutting evidence after judicial notice had been taken of the knowledge in question, I can see no reason why the Court could not or would not revisit the issue concerning judicial notice and consider admitting the rebutting evidence in that context. That type of scenario was adverted to by Isaacs J in the following passage in Holland v Jones (at 154)

In Mighell v. Sultan of Johore the Court accepted as genuine the signature of an official-not a Minister-but purporting to be on behalf of a Minister. That is an à fortiori case, and consequently, if the personality of the Minister is to be judicially noticed, it would seem that a signature purporting to be his and to verify an official document may also be judicially noticed, provided the Court is satisfied from the circumstances it is genuine. The act of consent in such a case as the present is an official act, the doctrine of R. v. Verelst is sufficient to establish primâ facie that the person acting was the proper person to give the consent, and the judicial notice taken of a Minister's signature to an official document completes the chain. No doubt it is open to a party to disprove the genuineness of the signature if he can, and then the Court will not act upon it.

(Emphasis added; footnotes omitted)

36    Mastercard relied on a passage in Cross on Evidence in which the learned author sought to explain this example in Holland v Jones on the basis that, when a court takes judicial notice of a signature, it merely means that the signature is recognised as “similar” to the signature of the person in question: see Cross on Evidence at [3125]. The author observed that, in those circumstances, evidence of forgery would be admissible, though it would not rebut the fact of which judicial notice is taken. I do not agree with that explanation or rationalisation of this aspect of the reasoning in Holland v Jones. Isaacs J does not say that, when a court takes judicial notice of a signature, it is simply recognising that the signature is “similar” to the signature of the person whose signature it purports to be. Rather, his Honour referred to the Court judicially noticing the signature, provided that the Court is satisfied from the circumstances that it is genuine. Evidence that showed that the signature was in fact a forgery would be admissible to rebut the suggestion that the signature was genuine.

37    In any event, none of those issues are likely to arise in the case of statistical information in respect of which judicial notice is taken pursuant to s 85A of the Reserve Bank Act. That is because, for the reasons already given, there is no requirement that the statistical information be indisputable or not open to question. It need only be established that that the statistical information was contained in a publication issued in the name of, by, or under the authority of, the Reserve Bank. I can see no reason why, in those circumstances, the opposing party, in this case Mastercard, could not make submissions, or adduce evidence, which contradicts, qualifies or contests the accuracy or validity of, the statistical information in question.

38    It is important to emphasise, in this context, that when the Court takes judicial notice of statistical information pursuant to s 85A of the Reserve Bank Act, that is not to say that the Court takes judicial notice of any underlying facts that might be able to be inferred or concluded from the statistical information. All that the Court is taking notice of is, in effect, that the Reserve Bank has collected, classified and published the relevant numerical facts or data bearing on a subject matter – and that the data is what it says it is. It is unnecessary for the Court to receive evidence from a Reserve Bank officer to prove that the Reserve Bank collected, classified and published the numerical facts or data.

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.

Contained in a Reserve Bank publication

42    The second limb of s 85A requires that the statistical information be contained in a publication issued in the name of, by, or under the authority of, the Reserve Bank. That requirement appears to be relatively clear and straightforward. That said, Mastercard submitted, or appeared to submit, that it was not sufficient for the statistical information to be contained in a publication issued in the name of, by, or under the authority of, the Reserve Bank. It was, so it was said, also necessary for the statistical information to have been collected by the Reserve Bank itself. In Mastercard’s submission, judicial notice could not be taken of statistical information that was contained in a Reserve Bank publication if that statistical information contained data collected by a third party, or data derived from a survey conducted by a third party. That would be the case even if the Reserve Bank had retained the third party to collect the data, or to conduct the survey. It would, so it was submitted, be absurd if judicial notice could be taken of statistical information contained in a Reserve Bank publication if the statistical information included data collected by, or surveys conducted by, a third party. The absurdity was said to arise from the fact that the inclusion of data collected by a third party would somehow “foreclose debate” in respect of the data.

43    I reject that submission. There is nothing in the text of s 85A, or any relevant contextual consideration, to support the contention that there is an additional requirement that the Reserve Bank had itself collected the data or conducted the survey. It is essentially immaterial that the statistical information may comprise or include data collected by a third party, or data which was the product of a survey conducted by a third party. That is particularly so where the third party had been retained by the Reserve Bank to collect the data or conduct the survey. It is sufficient for the statistical information to be contained in a Reserve Bank publication. No absurdity arises from the fact that the statistical information may comprise or include data collected by a third party. For the reasons given earlier, the fact that judicial notice may be taken of such statistical information does not foreclose debate in respect of that information in any relevant sense. It would be open to the opposing party, in this case Mastercard, to adduce evidence, or make submissions, which contested or raised issues concerning the third-party data or survey.

Summary of conclusions

44    The statutory text and relevant contextual considerations support the following conclusions in respect of the construction and operation of s 85A of the Reserve Bank Act.

45    First, judicial notice under s 85A of the Reserve Bank can only be given in respect of “statistical information”. The expression “statistical information” in that context means, in essence, numerical facts and data and information or knowledge pertaining thereto. The information or knowledge pertaining to the numerical facts and data may extend to information which explains what the data or numerical facts record, as well as information concerning the method by which the numerical facts or data was collected and classified. Statistical information would not, however, include narrative statements of opinion, inference or conclusion said to flow from the numerical facts or data.

46    Second, to engage s 85A, it is not necessary to demonstrate that the statistical information in question is incontestable, or not reasonably open to question. Nor is it necessary to demonstrate that the statistical information is notorious, or a matter of common knowledge, or capable of verification by reference to a document the authority of which cannot be questioned. Those elements or requirements of s 144 of the Evidence Act do not apply in the case of judicial notice under s 85A of the Reserve Bank Act.

47    Third, in relation to the second limb of s 85A of the Reserve Bank Act, there is no additional requirement that the statistical information in question comprises or contains data which has been collected by the Reserve Bank itself, as opposed to by a third party, or data which is the product of a survey conducted by the Reserve Bank itself, as opposed to a survey conducted by a third party. It is sufficient for the data to be contained in a Reserve Bank publication.

48    Fourth, the parties to the proceeding in which judicial notice of statistical information is taken are not precluded from adducing evidence, or making a submission, that tends to rebut or undermine the data or numerical facts in the statistical information in question. The opposing party may, for example, adduce its own statistical information, or adduce evidence, or point to surrounding information in the Reserve Bank publications in question, that calls into question the validity, voracity or significance of the published data. It may also adduce evidence which may bear on the inferences or conclusions that may be able to be drawn from the statistical information, and make submissions concerning what, if any, relevant inferences or conclusions may be drawn from the statistical information.

Is the information in question “statistical information”?

49    I am satisfied that all the information identified in Annexure A to the ACCC’s interlocutory application comprises or consists of statistical information for the purposes of s 85A of the Reserve Bank Act. That information comprises or consists of numerical facts and data, arranged in spreadsheets, tables or graphs, along with limited information which explains what the data or numerical facts record. It does not include any narrative statements of opinion, inference or conclusion said to flow from the numerical facts or data.

50    For the reasons given earlier, I reject Mastercard’s submissions to the effect that the information in Annexure A does not comprise or consist of statistical information because some of it may be contested, or may be contestable, or may be reasonably open to question. I also reject the submission that some of the information is not statistical information because it includes data collected by third parties, or data which was the product of a survey conducted by a third party.

51    Mastercard levelled a series of criticisms and complaints at the surveys that were the subject of the Consumer Payments Survey RDPs which included the statistical information in items 12 to 16 of the ACCC’s interlocutory application. Those criticisms and complaints included that there was a lack of transparency as to the quality of the surveys, that there was an inadequate analysis of the methodology employed and that there was an absence of underlying data available to support the statistical information in the tables that comprised items 12 to 16. It is unnecessary to consider and determine the merits of those criticisms. Even if they have some merit, that would not alter the fact that the tables are or contain statistical information for the purposes of s 85A of the Reserve Bank Act. Moreover, for the reasons already given, at the final hearing it will be open to Mastercard to adduce whatever admissible evidence it wishes to adduce, or make whatever submissions it wants to make, concerning the accuracy and reliability, or lack thereof, of the statistical information in question.

52    Mastercard also appeared to contend that some of the information in question was not statistical information for the purposes of s 85A of the Reserve Bank Act because it included averages, estimates or aggregated or “blended” data. The fact that some of the numerical facts and data in question included estimates, or aggregated or blended data does not mean it does not constitute statistical information. Statistics often include estimates or aggregated data. National inflation data, for example, will often aggregate or blend data relating to each of the states and territories.

Is the information contained in Reserve Bank publications?

53    I am satisfied that the information in Annexure A to the ACCC’s interlocutory application is contained in a publication issued in the name of, by, or under the authority of, the Reserve Bank.

54    As discussed earlier, the first category of documents in Annexure A comprises a series of spreadsheets containing data about Australia’s payments systems. Unchallenged evidence adduced by the ACCC established that the spreadsheets were downloaded from the “Payments Data” page of the Reserve Bank’s website. The “Payments Data” page on the Reserve Bank’s website contains the following statement: “The Reserve Bank has published monthly and quarterly statistics on Australian payment systems from is Retail Payments Statistics (RPS) collection since 2002, with some series dating back as far as 1985”. There could be no doubt that the Reserve Bank’s website was a publication issued in the name of, by, or under the authority of the Reserve Bank, or that the spreadsheets were contained in that publication. Mastercard did not appear to contend otherwise.

55    The second category of documents in Annexure A comprises discreet information contained in three publications and the corresponding appendices and supplementary information to those publications: RDP 2017-04 entitled “How Australians Pay: Evidence from the 2016 Consumer Payments Survey” dated July 2017; RDP 2020-06 entitled “Consumer Payment Behaviour in Australia: Evidence from the 2019 Consumer Payments Survey” dated September 2020; and RDP 2023-08 entitled “The Evolution of Consumer Payments in Australia: Results from the 2022 Consumer Payments Survey” dated November 2023. There could be no real dispute that each of those RDPs (including their appendices and supplementary information) are publications issued in the name of, by, or under the authority of the Reserve Bank. Evidence adduced by the ACCC indicated that the RDPs are published on the Reserve Bank’s website. There could also be no real dispute that the discreet information that is identified in Appendix A was contained in those publications (including their appendices and supplementary information).

56    Mastercard contended that some of the statistical information in the Consumer Payments Survey RDPs was not relevantly contained in a Reserve Bank publication because, on the front page of one of the RDPs, the authors noted that “the views expressed in the paper are those of the authors and do not necessarily reflect the views of the Reserve Bank of Australia”. I reject that contention. That note obviously applies only to the narrative views or expressions of opinion by the authors concerning what inferences or conclusions might be drawn from the survey data. It does not apply to the survey data itself. The ACCC asks the Court to take judicial notice of the data in various tables that are included in the paper, not the narrative views or expressions of interest of the authors. For the reasons already given, the data in the tables is unquestionably contained in a Reserve Bank publication.

57    The third category of information is contained in a Reserve Bank Bulletin entitled “The Cost of Card Payments for Merchants” dated September 2022. That Bulletin is published on the Reserve Bank’s website and is referenced in the 2022 Annual Report of the Reserve Bank’s Payments System Board. It is self-evidently a publication which is issued in the name of, by, or under the authority of, the Reserve Bank.

58    For the reasons given earlier, it is immaterial that some of the statistical information includes data, including survey data, that the Reserve Bank obtained from third parties, including Ipsos and Roy Morgan Research.

Is there any reason why judicial notice should not be taken of the information?

59    It appeared to be common ground that, once the Court is satisfied that the information in question satisfied both limbs of s 85A – that it is statistical information and that it is contained in a publication issued in the name of, by, or under the authority of, the Reserve Bank – the Court must take judicial notice of that statistical information. There is no residual discretion. Nevertheless, many of Mastercard’s submissions appeared to comprise reasons why it would be unfair or prejudicial for judicial notice to be taken of the information in Annexure A to the ACCC’s interlocutory application. Most, if not all, of those submissions were premised on the contention that the information in question was contested or contestable and the claim that Mastercard would be prevented or precluded from contesting the information, either by adducing evidence or making submissions concerning the information.

60    I have effectively already dealt with Mastercard’s submissions and contentions in that regard. I will nevertheless reiterate that, while judicial notice may be taken of the statistical information in question, Mastercard will not be prevented or precluded from adducing evidence, or making submissions, that may rebut or undermine the statistical information. It may, for example, adduce its own statistical information, or adduce evidence, or point to information in the Reserve Bank publications in question, that may call into question the validity, or voracity of the published data, or its significance. Mastercard is also not precluded from adducing evidence which may bear on the inferences or conclusions that may otherwise be drawn from the statistical information. Nor is it precluded from making submissions concerning what, if any, relevant inferences or conclusions may be drawn from the statistical information.

61    It follows that I reject Mastercard’s submission to the effect that giving judicial notice to the statistical information will cause it any relevant prejudice. I note that Mastercard claimed that it will or may encounter some difficulties in contesting or countering some of the statistical information that it claimed to dispute. Those difficulties were said to include time constraints given the impeding trial and its need to file its expert evidence in the near future. Many of Mastercard’s claims in that regard were unsupported by any, or any persuasive, evidence. In any event, it is open to Mastercard to seek a variation to the existing timetable in respect of the filing of its expert evidence if it considers that it has proper or reasonable grounds upon which to pursue that course.

62    I am not satisfied that there are any other reasons that would preclude or prevent the Court from taking judicial notice of the statistical information in question.

Conclusion

63    The Court will take judicial notice of the information referred to in the column headed “Information” in Annexure A to the ACCC’s interlocutory application dated 15 July 2024.

64    During the hearing it was suggested that my orders should include a note which made it clear that Mastercard was not precluded or prevented from adducing evidence, or making submissions, that may rebut or undermine the statistical information. I have made it abundantly clear in these reasons that Mastercard is not precluded from adducing any such evidence or making any such submissions. It follows that it is unnecessary to add any note to the orders that have already been made. Needless to say, 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.

Associate:

Dated:    2 September 2024