Antitrust Litigation 2025 Comparisons

The Competition and Consumer Act 2010 (Cth) (CCA) is the primary Australian legislation for competition law and governs the scope of claims that may be brought for any contravention.

Part IV of the CCA prohibits a range of anti-competitive conduct, including:

• cartel conduct;
• resale price maintenance;
• misuse of market power;
• anti-competitive mergers and acquisitions;
• anti-competitive agreements;
• anti-competitive exclusive dealing; and
• concerted practices.

There are four general sources of litigation in relation to contraventions of these provisions:

• the Australian Competition and Consumer Commission (ACCC) is the primary enforcer of competition laws, and can bring civil enforcement proceedings in the Federal Court of Australia;
• the Commonwealth Director of Public Prosecutions (CDPP) can bring criminal proceedings for cartel conduct only;
• corporations and individuals may commence private actions for damages and certain other remedies (such as injunctions and declaratory relief); and
• class action litigation can be brought by a lead applicant representing group members who have allegedly suffered loss or damage arising from the contravention (class actions are governed by The Federal Court of Australia Act 1976 (Cth) (Federal Court Act)).

There has been a history of private antitrust cases over the years. Recently, this has focused on misuse of market power litigation following amendments made to those provisions in 2017. 

Significant private antitrust cases in Australia include the following.

• Queensland Wire Industries v BHP (1989) 167 CLR 177 – a foundational private misuse of market power case. The High Court held that BHP’s refusal to supply a variety of steel bar to a downstream rival was a misuse of market power. It sets out important principles for defining markets and determining whether a corporation possesses market power.
• News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 – a case relating to exclusionary provisions in contracts which established the Australian precedent that the meaning of ‘purpose’ (for the purposes of Part IV of the CCA) is subjective.
• Seven Network Limited v News Limited [2009] FCAFC 166 – the case involved several competition law issues, particularly around Section 45, in relation to anti-competitive agreements. The Full Court:
1. dismissed Seven Network’s appeal and clarified that it is not necessary for all parties to an agreement to share the anti-competitive purpose. It is sufficient if one party had a substantial purpose of substantially lessening competition; and
2. rejected Seven’s arguments about market definition and competitive constraints, affirming that Seven had not proven that C7 imposed a close competitive constraint on Fox Sport.
• Epic v Google and Apple – a misuse of market power case against each of Google and Apple related to access to their respective app stores and related terms restricting alternative in-app payments (see 1.2 Recent Developments).

There has been a significant increase in private antitrust litigation in Australia in recent years, particularly in relation to claims involving an alleged misuse of market power, where several cases have been commenced since 2017 (following amendments that were made to the provision in late 2017). However, a number of these have been resolved commercially or withdrawn.

The first contested liability cases under the amended misuse of market power provision to come to judgment were commenced by Epic against each of Google and Apple. The Federal Court heard the Epic matter in early 2025 and the Court’s decision was handed down partially in Epic’s favour in August 2025. While the judgment has not been released at the time of writing, the Court found that both Apple and Google had misused their substantial degree of market power by using technical and contractual restrictions to foreclose alternative app distribution and in-app payment options on iOS and Android since 2017.

The litigation is significant for two reasons: it involves the first contested liability case to come to trial under the new misuse of market power provisions, and, due to the context in which it arose, it raises high-profile issues of access, exclusivity, and interoperability on large digital platforms. The litigation also involves follow-on class action proceedings, on behalf of app developers, which are continuing.

There are numerous other private misuse of market power cases currently before the Federal Court, including:

• Engage Marine v Tasmanian Ports Corporation (a follow-on private action after the ACCC resolved its prosecution of this conduct in 2021 through consent orders);
• Sinclair v Sony Interactive Entertainment;
• Australian Gypsum Industries v CSR Building Products;
• Riverine Grazier v Google;
• Q News and Sydney Times v Google; and
• Employment Hero v SEEK.

It has become clear that private litigation under the new Section 46 (with its lower threshold) has become an increasingly attractive commercial strategy for parties when responding to conduct engaged in by larger or substantial competitors.

A person (including a corporation) who has suffered loss or damage, or is likely to suffer loss or damage, as a result of a contravention of the CCA, can bring proceedings in the Federal Court seeking damages (Section 82) and a range of other remedies, including injunctions (Section 80) (excluding in relation to an anti-competitive merger or acquisition), declarations and other orders, such as an order that a contract is void (Section 87).

Section 83 of the CCA further facilitates private “follow-on” actions by enabling findings of fact made in certain proceedings against a corporation to be used as prima facie evidence against that corporation in certain other proceedings. This is intended to assist private litigants in follow-on actions where the ACCC has successfully proved a contravention of Australia’s competition law.

The Federal Court exercises primary jurisdiction over all civil and criminal proceedings arising under the CCA in relation to alleged breaches of the CCA.

The Australian Competition Tribunal (Tribunal) functions as a form of limited merits review in relation to certain ACCC decisions, including authorisations, merger authorisations, and, under the new and mandatory merger regime (fully effective from 1 January 2026), all merger reviews. The Tribunal comprises a presidential member, who must be a judge of the Federal Court, and two non-presidential members, who possess knowledge or experience in industry, economics, commerce, law or public administration.

The Tribunal can hear certain appeals from ACCC decisions, but otherwise does not determine litigation matters under the CCA.

Appeals from decisions of the Federal Court are heard by the Full Federal Court and by the High Court (subject to special leave being granted).

With the exception of the new mandatory merger notification regime, in force from 1 January 2026, the ACCC does not determine contraventions of the CCA; that function lies exclusively with the courts. Accordingly, ACCC decisions are not binding on any courts. Similarly, decisions of competition authorities in other jurisdictions are not binding on antitrust proceedings before Australian courts.

The ACCC has an express statutory right to formally intervene as a third party in private proceedings commenced under the CCA, with leave of the court. If the ACCC does intervene, it will be regarded as a party to the proceeding and has all the rights, duties and liabilities of a party.

Usually, the ACCC will consider intervening only where a case involves one of the following:

• significant public interest;
• there are important or novel questions of statutory construction; or
• to make submissions about the “deleterious international nature of the conduct” even if the economic impact in Australia is small.

While the ACCC does not intervene in every private case, it has done so over the years and will continue doing so where it considers the public interest to be served in some way, including where a case raises questions of legal principle that the ACCC wishes to be heard on.

Alternatively, the ACCC may also seek leave to appear in proceedings as an amicus curiae (“friend of the court”) or as a non-party. This occurred recently in the Epic v Apple proceedings. In that case, Apple sought a stay of the proceedings on the basis that the commercial agreement between it and Epic required all disputes to be determined in California courts. The ACCC made submissions concerning the public policy in favour of disputes involving Australia’s competition laws being heard and determined by Australian courts. The court granted the ACCC leave to intervene as a non-party and make written submissions only as to issues of public policy.

In respect of merger decisions, the ACCC is the primary administrative decision maker and therefore any decision is subject to challenge in the Federal Court only in respect of an error of law (ie, judicial review). A merger review decision made by the ACCC can be reviewed by the Tribunal on a limited merits review basis. While the Tribunal remakes the decision on the merits, it does so principally on the basis of the material that was before the ACCC.

In civil matters, the applicant bears the burden of proof in establishing its case. If a respondent wishes to rely on any available defences or cross-claims, the respondent bears the burden of proof in establishing that defence or cross-claim.

The relevant standard of proof in civil proceedings is the “balance of probabilities”, meaning the applicant will need to prove, on the balance of probabilities, that the respondent has contravened one or more competition law prohibitions and, where damages are sought, that the loss has been caused as a result of the contravening conduct.

However, in determining whether conduct (including a merger) would be “likely” to substantially lessen competition in contravention of the CCA, the court must be satisfied that there is a “real commercial likelihood” or “real chance” of the conduct doing so. This is accepted as being a standard that is less than the balance of probabilities (ie, “more probable than not” ((see ACCC v Pacific National Pty Ltd [2020] FCAFC 77).

In criminal cartel matters, the CDPP bears the burden of proof. The standard of proof in criminal cartel matters is higher, at the level of “beyond a reasonable doubt”.

The question of whether there is a “passing on” or “pass-through” defence in Australia has not been determined.

However, in an interlocutory judgment in Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (2008) 251 ALR 166, the Court commented that if a direct purchaser “had passed on the full cost of the international airfreight services to all of its clients, it would seem to have suffered no loss”. This may indicate the possibility of such a defence in Australia.

Indirect purchasers have legal standing to sue and will need to prove that they have suffered loss or damage by conduct in contravention of competition laws to be entitled to recover damages.

The applicable limitation period depends on whether the competition proceedings are criminal or civil. In the case of civil claims, the limitation period will also depend on the relief sought as follows:

• in relation to civil claims seeking penalties, the claim must be brought within six years of the date on which the contravention occurred; and
• in relation to civil claims seeking damages, the claim must be brought within six years of the date on which the cause of action accrued, which is the date the loss or damage is suffered, rather than when it is discovered.

There is no limitation period for a proceeding seeking an injunction. While there is also no limitation period for relief sought under Section 87 of the CCA (which gives the court broad discretion to make a range of other orders), it does not provide applicants with a stand-alone cause of action and therefore must be anchored to another substantive claim for relief, such as damages or an injunction.

There is no limitation period for criminal cartel cases. The only time constraint is that a criminal case can only be commenced in relation to conduct occurring post 24 July 2009, which is the date that criminal cartel offences became law in Australia.

The length of competition law litigation varies significantly, depending upon the circumstances. Proceedings at first instance can often exceed two years to complete, but could be longer, depending on the number of parties, the number of witnesses, the volume of discovery, the legal and economic complexities of the case and the need for expert evidence. It is not uncommon for liability to be heard first, before a separate hearing on the question of remedies. In addition to this, time must be allowed for the delivery of judgment, which may itself take several months depending on the complexity of the issues, the Court’s schedule and any appeals.

Australian courts have, at times, been prepared to expedite competition matters where this is seen to be necessary to protect competition or in the context of mergers.

Representative proceedings, also referred to as class actions, may be brought for damages for competition law contraventions of the CCA. The Federal Court Act sets out a detailed regime for representative proceedings.

To bring a representative proceeding, the following criteria must be satisfied:

• seven or more persons have claims against the same person;
• the claims of all those persons are in respect of, or arisen out of, the same, similar or related circumstances; and
• the claims of all those persons give rise to a substantial common issue of law or fact.

Representative proceedings must identify the group of persons on whose behalf the claim is brought, typically by specifying the shared characteristics that define group membership. A claim is typically commenced by one or two lead applicants who represent the class.

The Federal Court Act provides for an “opt-out” model whereby the outcome of the proceedings will bind persons who are within the defined group unless they opt out by written notice by a date fixed by the court.

Direct and indirect purchasers have standing to bring representative proceedings for damages arising from contraventions of the competition provisions of the CCA, provided that the statutory criteria described above under the Federal Court Act are satisfied, and each group member can establish that they have suffered loss or damage as a result of the contravening conduct.

There is no requirement for a class certification for proceedings to be brought as a class action.

The CCA not only applies to conduct in Australia but also to conduct outside Australia by:

• bodies corporate incorporated in or “carrying on business” within Australia;
• Australian citizens; or
• persons ordinarily resident within Australia.

The extraterritorial reach of Australia’s competition laws may be even broader than that stated above. This is by virtue of the State and Territory Competition Codes, which were enacted due to constitutional limitations on Commonwealth legislative power. The Competition Codes expanded the reach of Australia’s competition laws to persons (or companies) “otherwise connected” with Australia. The phrase “or otherwise connected with” has been considered in passing judicial commentary from the Federal Court in ACCC v Yazaki Corporation [2015] FCA 1304. In that case, it was interpreted as being capable of expanding the extraterritorial reach of Australia’s competition laws, although the matter has yet to be conclusively determined.

Several of Australia’s consumer law prohibitions require the relevant conduct to occur “in trade or commerce,” which is defined as trade or commerce within Australia or between Australia and places outside Australia.

Once it can be shown that the CCA applies to the facts in issue, the Federal Court (and other courts) will generally only assume jurisdiction when the respondent or defendant is validly served with court process or a requirement for service is dispensed with by court order.

Generally, it is necessary to obtain leave to serve process overseas, and to obtain that leave, the applicant (including the ACCC) needs to establish a prima facie case for the relief claimed. However, it is not necessary to establish this for each cause of action relied upon, only that it can be made out for any one of the causes of action (Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153).

Access to Documents Pre-Commencement

The ACCC has broad statutory powers to compel the provision of information and documents, and conduct oral examinations of individuals, if it has reason to believe that a person is capable of providing information or documents regarding a matter that constitutes or may constitute a contravention of the CCA (Section 155, CCA). These investigatory powers cease to apply after the commencement of proceedings, from which point the ACCC must use court-ordered discovery.

A private party generally has limited ability to obtain documents from the ACCC before proceedings have begun. However, where the ACCC has commenced proceedings, the respondent is entitled to request that the ACCC provide it with every document in connection with the matter that tends to establish the corporation or other person’s case (Section 157, CCA), subject to some exceptions.

For private civil actions, there is the ability under the Federal Court Rules for parties to apply to the court for preliminary discovery before commencing a substantive claim. To do this, the applicant must show that, after making reasonable enquiries, they do not have sufficient information to decide whether to commence a proceeding and they reasonably believe that they may have a right to relief (see Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193).

Discovery in Civil Proceedings

All parties (whether ACCC or private litigants) to civil proceedings are also able to seek standard discovery once proceedings have commenced. There is a range of discovery orders available to litigants, and the court will generally grant discovery if doing so will facilitate the just resolution of the proceeding and is necessary for the determination of issues in the proceeding.

Outside of formal discovery, a party to a proceeding can also obtain documents from another party by issuing a notice to produce. A notice to produce can seek documents that are mentioned in pleadings or affidavits, or require the production of documents at trial or during a hearing.

Discovery in Criminal Proceedings

Unlike civil matters, the prosecutor in a criminal matter has a duty of disclosure, which derives from the central tenet of the Australian criminal justice system that accused persons are entitled to know the case against them. The duty of disclosure arises from the combination of the common law, statute, professional conduct rules, prosecution policies and practice directions of the courts. If a prosecutor does not comply with this obligation, it can result in a miscarriage of justice.

In prosecuting criminal cartel matters, the CDPP must comply with any applicable State or Territory laws and any court directions regarding disclosure (this will depend on the State or Territory in which the proceedings are commenced) as well as professional conduct rules. If not already required by those laws, the CDPP must comply with the requirements set out in the “Statement on Disclosure in Prosecutions Conducted by the Commonwealth” (Statement of Disclosure), which requires the CDPP to disclose any material that:

• can be seen on a sensible appraisal by the prosecution to run counter to the prosecution’s case;
• might reasonably be expected to assist the accused to advance a defence; or
• might reasonably be expected to undermine the credibility or reliability of a material prosecution witness.

Ordinarily, the CDPP’s case will be provided to the accused by way of a “Brief of Evidence” (Brief). The timing of the provision of the Brief will depend on the jurisdiction in which the claim is first commenced, but often this will be during committal proceedings.

Subpoenas

Third-party evidence can be compelled through the issuance of subpoenas in both civil and criminal proceedings. A subpoena can be issued in relation to the production of documents or to compel a witness to appear to give evidence (or both).

In the Federal Court, a subpoena may be issued only with leave of the court. The party seeking leave for the issuing of a subpoena bears the onus of demonstrating to the court that the subpoena has a legitimate forensic purpose in relation to the issues in the proceeding. The party seeking leave is also subject to paying any reasonable costs of compliance incurred by the third party.

There is no requirement for the party issuing the subpoena to provide notice to any other party.

Communications subject to a claim of legal professional privilege can be withheld from inspection, but their existence must be disclosed in a list of discovered documents, as well as a description of the document and the privilege basis claimed.

Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice (advice privilege) or for use in actual or contemplated litigation or legal proceedings (litigation privilege). The privilege also extends to advice provided by in-house counsel, although the Court will scrutinise the independence of the lawyer’s role and the nature and character of the advice (whether legal or commercial).

Communications may also be subject to without prejudice privilege, which applies when parties have attempted to settle the matters in dispute between them.

Where a document or communication has been prepared for multiple purposes, the party asserting privilege must establish that the communication had the requisite dominant purpose by adducing focused and specific evidence to establish that the dominant purpose for which the document was created, or the communication was made, was for a legal purpose.

Courts will consider a variety of evidence to assess the dominant purpose for which a document or communication was made, including public statements and/or media releases made by a company. An unsupported assertion is insufficient to establish a dominant purpose.

In Australia, there is no general right that enables a successful or unsuccessful applicant for immunity or leniency to withhold evidence disclosed by it to the ACCC (or CDPP) when obtaining leniency in any subsequent court proceedings.

Whether an applicant may be able to resist an application for access to or discovery of such documents will depend on the circumstances and the evidence being sought. In the past, the ACCC has successfully resisted an application for access to admissions made by a competitor in securing leniency from the ACCC on the grounds that the documents related purely to credit and are not discoverable (Australian Competition & Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444, upheld on appeal: see Visy Industries Holdings Pty Ltd v Australian Competition & Consumer Commission [2007] FCAFC 147). A leniency applicant may be able to resist an application on the same grounds.

Further, in 2009, provisions were introduced in the CCA that enable the ACCC to withhold producing to the court or another party to a proceeding “protected cartel information”, being information provided to the ACCC in confidence and relating to a possible contravention of the civil or criminal cartel provisions. The ACCC may, but cannot be compelled to, produce protected cartel information to a party to proceedings or a court or Tribunal (except with leave in the latter case). However, in deciding whether to disclose protected cartel information, or to grant leave, the ACCC or the court/Tribunal (as applicable) must have regard to specific statutory factors (and not any other matters). Similarly, the ACCC may, but cannot be required to, disclose protected cartel information to another party to a proceeding, and if it does, it must consider specific statutory factors (and not any other matters). The ACCC may seek to resist disclosing leniency documents sought by a private litigant under subpoena based on the common law protection known as public interest immunity.

A private litigant could theoretically access leniency documents from the ACCC under freedom of information (FOI) legislation. However, the ACCC has almost invariably resisted FOI production, relying on one or more of the numerous exemptions in sections 33 to 47 of the FOI Act, and the Courts have supported decisions to refuse access (eg, Telstra Australia Ltd v Australian Securities and Investments Commission [2000] AATA 71). Amongst others, this includes an exemption where access to documents might reasonably be expected to affect the enforcement or proper administration of the law.

Proceedings heard in the Federal Court are subject to the:

• Evidence Act 1995 (Cth) (Evidence Act), which prescribes the rules governing admissible forms of evidence, including evidence given by witnesses; and
• The Federal Court Act and Federal Court Rules, supplemented by the Court’s Practice Notes, which prescribe various procedural rules.

The primary way that witness evidence is adduced is through evidence in chief. The form of evidence in chief is set by the court and turns on the nature of the issues. In competition proceedings it is ordinarily given by affidavit rather than by oral narration in court.

Affidavits are used because they promote efficient case management and reduce hearing time and cost, and the Federal Court rules and Practice Notes prescribe their form and content. Unless the court orders otherwise, an affidavit becomes evidence when it is read or taken as read, and remains subject to objections as to admissibility. Evidence in chief, whether oral or by affidavit, must be relevant and not caught by an exclusionary rule to be admissible.

A party is free to choose its witnesses, but it must call those necessary to prove the facts it has pleaded. If a party, without explanation, fails to give evidence, to call a witness, or to tender documents, the court may draw an inference that the missing evidence would not have assisted that party. It does not permit an inference that the absent material would have damaged the case.

Any witness called by a party may be cross‑examined by the opposing party. Cross‑examination is oral and usually in person, although the court may permit it by video link where appropriate. It may address both fact and credibility, but questioning must be confined to admissible matters. Cross‑examination is not compulsory and is often dispensed with where a witness is simply required to prove uncontroversial documents. The key forensic question is whether a party intends to contradict or challenge the accuracy of the evidence. A party that wishes to lead contrary evidence or later submit that a witness is mistaken or unreliable must first put the substance of that challenge to the witness in cross‑examination.

If a witness is unwilling to cooperate, a party may compel evidence by subpoena, which can require attendance in court to give oral testimony, production of documents, or both, though production subpoenas are more common for strategic reasons. Outside a subpoena, a witness cannot be forced to confer with lawyers. Once issued, a subpoena must be served; non‑compliance is contempt and can lead to sanctions, including a warrant for arrest. The issuing party must provide conduct money and meet the recipient’s reasonable costs of compliance. A person subpoenaed to give evidence may, with the court’s leave or direction, give evidence in chief by affidavit rather than orally. If a compelled witness proves adverse, the calling party can seek to have the witness declared hostile so that cross‑examination is permitted.

The courts accept expert evidence and it is routinely relied upon in competition cases in Australia. Experts must act independently of the parties. Any expert witness must read and agree to be bound by the Harmonised Expert Witness Code of Conduct prior to giving evidence. Admissibility of expert evidence turns on s 79 of the Evidence Act and the report must identify the field of specialised knowledge, the factual assumptions, the reasoning path and the literature or data relied upon.

Importantly, the expert’s paramount duty is to the court, not the retaining party, and the report should state any limits of expertise, any material uncertainty and any testing or sensitivity analysis undertaken. The Federal Court’s Practice Notes typically require the expert report to annex various documents, such as the letter of instruction from the relevant party.

Where there are multiple competing expert witnesses, it is common for their evidence to be presented concurrently through what is referred to as a joint expert conference (colloquially referred to as a “hot tub”). Commonly, judges will also request that experts seek to agree and file a joint expert report identifying both matters that are agreed upon and key differences, before trial. The court will then direct the experts to confer (often without lawyers present, and sometimes before a registrar or other facilitator) to pinpoint each issue on which they agree or disagree and to record the reasons for any divergence. The resulting joint report is drafted and signed by the experts themselves and becomes a central procedural document for the trial. In larger or more complex matters, particularly class actions, the court may supplement this process by appointing an independent referee to investigate specified factual questions and produce a report for adoption by the court.

While the approach to expert evidence varies depending on the matters in issue and the presiding judge’s preferences, in a hot tub, each expert typically presents their opinion individually or jointly (where aligned) and then each expert witness is given the opportunity to respond. The experts can be cross-examined, and the judge may pose questions directly.

A party may also seek to adduce survey evidence – that is, responses or statements obtained outside of court through structured surveys.

In a claim for damages, the applicant may recover the actual loss or damage suffered by the conduct in contravention of competition laws (Section 82, CCA).

The CCA does not provide any guidance as to how damages are to be quantified. While cases state the measure of damages is similar to that recoverable under the common law in tort (that is, to put the person in the position they would have been in had the conduct not occurred), damages are not confined to those recoverable in tort.

Punitive or exemplary damages are not available for competition law contraventions.

There are some recent examples of private actions/class actions for damages under the CCA. Of those that are commenced, many are settled out of court, with some examples outlined below.

• Following the ACCC’s successful prosecution of Visy for engaging in cartel conduct with its competitor, Amcor Limited, in which the Federal Court imposed civil penalties of AUD38 million (ACCC v Visy Industries Holdings Pty Ltd [No 3] (2007) 244 ALR 673), a follow-on class action seeking AUD466 million in damages settled for AUD95 million (Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2011] FCA 1402). A second private damages action commenced by Cadbury Schweppes was reported to have settled for AUD235 million; however, the terms of the settlement were confidential, so it is not possible to verify that figure.
• In 2014, the Federal Court approved a settlement of AUD38 million in the air cargo cartel class action, brought by air freight customers in relation to alleged cartel conduct by various airlines between 2001 and 2006 regarding the fixing of fuel and other surcharges. This settlement followed the ACCC’s successful obtaining of agreed penalties against multiple airlines.

Sections 51A and 52 of the Federal Court Act provide for the making of orders for the inclusion of interest in judgments.

Where an award for damages is made, defendants are jointly and severally liable (ie, each defendant is responsible for the full amount of damages awarded).

In cases involving cartel conduct, a company that applies for immunity or leniency by the ACCC (in civil cases), or the CDPP (in criminal cases), or cooperates with the ACCC under their cooperation policy may receive penalty or sentencing discounts but there is no pre-determined amount – it is a matter for the court to determine the appropriate penalty (or sentence).

A party that is granted immunity will be protected from proceedings commenced by the ACCC (or CDPP), but is not protected from third-party claims.

The CCA and Federal Court Act do not contain a legal basis/procedure for claiming contributions from third parties. Instead, in some cases, a party will seek to join another party to litigation where a question arises concerning their role or culpability and which then facilitates an order directly against that party.

Any person, including the ACCC, may apply to the court for injunctive relief. The court may grant an interim or interlocutory injunction pending determination of an application for a final injunction “where in the opinion of the Court it is desirable to do so” (Section 80(2), CCA). That is, an interlocutory injunction is only available where the party is seeking a permanent injunction as part of any remedies at trial.

There are both interim and interlocutory injunctions. An interim injunction is a very short-term measure aimed at protecting the status quo, usually until a hearing can be arranged. These can often be obtained without notice (known as an ex parte injunction). This is typically done in situations where notifying the other party would undermine the purpose of the injunction (eg, where it aims to prevent the destruction of assets) or where further damage would result from a delay in making the application with notice. The applicant has an ongoing duty of full and frank disclosure.

The Court grants an interlocutory injunction as an order that typically remains in place until the final hearing. Broadly, two issues need to be considered by the Court in considering whether to grant an interlocutory injunction:

• whether the applicant can satisfy the court that it has a prima facie case; and
• whether the “balance of convenience” favours the grant of an interim injunction.

With respect to the first issue, it is necessary for the applicant to show a sufficient likelihood of success (in relation to the primary action) to warrant preserving the status quo until the final hearing, but does not have to show a “high degree of assurance”. The strength of the probability required depends, in part, on the consequences likely to follow.

As to the second issue, the balance of convenience looks at what the inconvenience or harm to the applicant would be if the injunction were refused versus the inconvenience or harm to the respondent if the injunction were granted. Only if the balance lies in favour of the applicant would an injunction be granted.

Relevant considerations include whether the applicant would suffer irreparable harm if the injunction was not granted, whether the respondent would be prejudiced by the injunction in some way (eg, unable to operate business), whether the injunction would change or rightly maintain the status quo, whether damages would be a sufficient remedy for the applicant after the final hearing and whether the respondent would be able to pay such damages. If the adverse effect of the injunction on the respondent can be measured financially, then the court will be more likely to grant the injunction.

The balance of convenience is considered in the context of the strength of the prima facie case. The stronger the prima facie case, the less the balance has to weigh in favour of the applicant.

Where the applicant is the ACCC, the court is also required to consider the harm to the public interest, market actors and consumers flowing from the potentially detrimental effects on competition if the injunction is not granted.

Where the applicant is a private party, the court will typically require an undertaking as to damages to be given to protect the respondent if an injunction turns out to have been wrongly granted. If such an undertaking cannot be given, the application will likely be refused.

The requirement for an undertaking as to damages does not apply where the applicant is the ACCC (s 80(6), CCA). The court must therefore take into account the detriment that may be caused to the respondents (and third parties associated with them) by the grant of an injunction that may not be mitigated by an award of damages

Finally, injunctions are no longer required in merger matters, because a failure to notify a merger to the ACCC which was required to be notified results in that transaction being automatically void (and having always been void) (Section 45AZA, CCA).

Mediation and arbitration are available and encouraged to assist in the quick and efficient resolution of cases. In the early stages of the proceeding, the judge will typically consider whether ADR processes are likely to assist and may order the parties to attend mediation without their consent.

Third-party litigation funding is permitted in Australia.

Third-party litigation funding is common in Australia for class actions, although there have been a limited number of competition class actions compared to others, such as securities class actions.

In June 2022, twin class actions were launched against Apple and Google on behalf of app developers and consumers, alleging various competition laws contraventions, including misuse of market power and unconscionable conduct, in relation to Apple and Google requiring developers to use their respective payment systems for apps and in-app purchases. Both actions are funded partly by a litigation funder. The law firms representing the class are deferring payment of the portion of their legal fees that are not being funded by the litigation funder. The first stage of the trial concluded on 5 July 2024.

The air cargo cartel class action, which commenced in 2007 and settled in 2014, was also funded by a third party.

In civil cases, costs generally “follow the event”. This means that the successful party is generally entitled to an order that the unsuccessful party pay its legal costs. However, costs orders are usually made on a “party/party” costs basis, which only accounts for a proportion of the total legal costs actually incurred by the successful party.

The court may depart from the usual party/party order and order more generous indemnity costs if there is “some special or unusual feature in the case”. Indemnity costs entitle the recipient to all its costs apart from those unreasonably incurred.

In civil cases commenced by the ACCC, the court can order indemnity costs against the ACCC where the respondent made a reasonable offer of settlement and still got rejected.

The court may order an applicant to give security for the payment of costs that may be awarded against them (Section 56, Federal Court Act). An application for an order to provide security for costs must be accompanied by an affidavit setting out the facts relevant to the application, including whether there is reason to believe that the applicant will be unable to pay the respondent’s costs if so ordered; whether the applicant is ordinarily resident outside Australia; whether the applicant is suing for someone else’s benefit; whether the applicant is impecunious; and any other relevant matter (Rule 19.01, Federal Court Rules).

In criminal cases, at common law, a successful defendant is not entitled to costs. Generally, an accused is not able to recover legal costs from the CDPP if it successfully defends criminal cartel proceedings.

First instance decisions of the Federal Court (single judge) can be appealed to the Full Federal Court (usually three judges) on errors of law (such as where the court has applied an incorrect legal principle or made findings of fact that are not supportable by the evidence).

Decisions of the Full Federal Court can be appealed to the High Court of Australia, with special leave. The High Court is Australia’s highest court. The High Court will only hear cases of significant importance, such as on new points of law, to resolve questions of law decided inconsistently by lower courts, or on matters of public importance.

In criminal cases, appeals must only involve questions of law, unless leave is granted, which occurs in very limited circumstances.

The ACCC commences most competition cases in Australia.

The number of private enforcement actions has been increasing, particularly with respect to claims brought under the misuse of market power (dominance) provisions, which were amended in November 2017.

While some private actions follow on from ACCC proceedings, this is not always the case.

The ACCC (as investigating body) and the CDPP (as prosecuting body) have experienced some significant setbacks in successfully prosecuting criminal cartels where liability has been contested. In mid-2021, in the first-ever criminal cartel jury trial, Australian mobility aid company Country Care and two individuals were acquitted of all charges following a lengthy 12-week trial and only four hours of deliberations. The CDPP then withdrew all remaining criminal charges against the Construction, Forestry, Maritime, Mining and Energy Union and a union official in August 2021 and in the high-profile bank cartel case in February 2022, the latter having been on foot since mid-2018.

These cases prompted calls to improve the drafting of the cartel provisions, which have been described as “devilishly complex and labyrinthine” – but there are no current proposed reforms.