The Private Competition Enforcement Review: Australia
Overview of recent private antitrust litigation activity
In 2017, the legislative framework supporting private antitrust enforcement rights in Australia (and Australian antitrust law generally) underwent significant reform. Now three years on, it still remains to be seen whether the amendments have increased the ease with which private antitrust follow-on proceedings can be pursued following regulatory enforcement action as expected, and they remain largely untested. Since 2017, many high-profile private antitrust actions, some of which are likely to test at least some of these amendments, have been commenced. Perhaps unsurprisingly, a number of these enforcement actions have been in the digital platforms space.
The most recent of these, Epic Games Inc & Anor v. Apple Inc & Anor, commenced in November 2020. In one of the most significant tests of the misuse of market power provision under the Competition and Consumer Act (CCA),2 Epic alleged that, in response to its introduction of an alternative in-app purchase system in its most popular game, Fortnite, Apple removed Fortnite from the Apple App Store and subsequently terminated Epic's Apple developer programme account, removed apps associated with that account from the Mac App Store, and threatened effectively to prevent Epic from continuing to offer its software suite, Unreal Engine, to third-party developers. In doing so, Epic alleged that Apple engaged in a misuse of market power, exclusive dealing and making or giving effect to a contract, arrangement or understanding, each having the purpose of, or having or likely to have the effect of, substantially lessening competition in two markets. Additionally, Epic alleged that Apple engaged in unconscionable conduct. A hearing is scheduled to commence in March 2021.
Prior to this, in 2019, three private enforcement actions commenced: B&K Holdings v. Garmin, which the court dismissed by consent in November 2019 following the failure of an application for summary judgment by Garmin; a class action commenced in the Federal Court of Australia by lead plaintiff J Wisbey & Associates Pty Ltd; and Dialogue v Instagram and Facebook.
J Wisbey & Associates Pty Ltd, an importer of dental equipment, on behalf of forex customers, commenced proceedings against five major investment banks – UBS, Barclays, Citibank, Royal Bank of Scotland and JP Morgan – alleging that the banks engaged in cartel conduct in the foreign exchange market between 2008 and 2013. The banks allegedly manipulated foreign exchange rates by artificially increasing the cost of buying certain currencies and artificially decreasing the price received when selling certain currencies. The proceedings were commenced following regulatory investigations overseas and admissions made to US and UK regulators by the banks. The proceedings are ongoing, and no date has yet been set for the substantive hearing.
Dialogue, a company specialising in social media, reportedly alleges that Instagram and Facebook engaged in unconscionable conduct and misuse of market power after Instagram and Facebook withdrew Dialogue's products' access to those platforms, including Dialogue's Instagram scheduling tool, SKED Social. A temporary injunction has been in place since May 2019, restraining Instagram and Facebook from terminating, suspending or refusing Dialogue's access to the Instagram and Facebook platforms, and a further injunction against the respondents will remain in effect until determination of an interlocutory application heard in July 2020. This case is similar to Unlockd v. Google, which was commenced in the Federal Court of Australia in 2018. Unlockd sought an injunction preventing Google from withdrawing its services from the Google Play Store and terminating the supply of Garmin's Ad Mob Service to Unlockd globally. Those proceedings were discontinued by Unlockd in late 2018, reportedly on the basis that Unlockd was unable to secure funding to pursue its claim against Google. Interestingly, reports at the time indicated that the Australian Competition and Consumer Commission (ACCC) intended to commence proceedings against Google concerning the conduct; however, to date no action has been filed against Google in respect of this conduct.
The ACCC's interest is consistent with its recent focus on the increasing market power of digital platforms. In July 2019, the regulator handed down its final report of its Digital Platforms Inquiry, which included recommendations that the merger provisions of the CCA be amended to include additional factors when determining whether a merger would substantially lessen competition and require large digital platforms to provide advance notice of acquisitions of any business with activities in Australia. The Australian government responded to this report in December 2019, including in its response a commitment to establishing a Digital Platforms Branch within the ACCC. The specialist branch commenced work on a report scrutinising mobile app marketplaces in September 2020, as part of a five-year inquiry into markets for the supply of digital platform services in Australia. The report is due to be published in March 2021.
Another major focus of the ACCC continues to be cartel conduct. In October 2019, the ACCC released its Immunity and Cooperation Policy for Cartel Conduct – October 2019, which is intended to strengthen and clarify the process of applying for immunity as part of its strategy to encourage businesses and individuals to disclose cartel behaviour. It is expected that any increase in enforcement action as a result of such disclosures will lead to increases in private antitrust follow-on litigation, although this will take some time to be effectuated through court proceedings or other public announcements. In addition, there have been a number of criminal prosecutions under Australia's criminal cartel regime recently. Most notably, in 2019, the Federal Court imposed the largest ever criminal fine under the CCA, of A$34.5 million, against Japanese shipping company Kawasaki Kisen Kaisha Ltd after it pleaded guilty to criminal cartel conduct in 2018. More recently, Norwegian global shipping company Wallenius Wilhelmsen Ocean AS pleaded guilty to criminal cartel conduct in June 2020. The ACCC's investigation culminated in criminal charges in August 2019 and formed part of the regulator's long-running focus on shipping cartels. A sentence is yet to be handed down.
General introduction to the legislative framework for private antitrust enforcement
The CCA and the Federal Court Act3 provide the legislative framework for private antitrust litigation in Australia. Part IV of the CCA prohibits a broad range of anticompetitive conduct, including cartel conduct, exclusive dealing and concerted practices, misuse of market power, and anticompetitive mergers and acquisitions. Any person who has suffered loss or damage, or is likely to suffer loss or damage, as a result of a breach of the prohibitions on anticompetitive conduct under the CCA can bring proceedings to recover that loss or damage under Section 82 of the CCA or seek compensation or other orders to limit the loss or damage suffered or likely to be suffered as a result of the conduct: for example, an order declaring the whole or part of a contract to be void. Private litigants can also seek injunctions in relation to a breach or proposed breach of the prohibitions on anticompetitive conduct, other than the prohibition on anticompetitive mergers and acquisitions (which can only be sought by the ACCC). An action for damages or compensation or other orders may be commenced at any time within six years after the day on which the cause of action that relates to the conduct accrued.
Under Section 86(1) of the CCA, the Federal Court of Australia has jurisdiction to hear all civil proceedings arising under the CCA. Under Section 163 of the CCA, the Federal Court also has jurisdiction to hear prosecutions for criminal offences under the CCA. The Federal Circuit Court has jurisdiction to hear misuse of market power cases and matters arising under industry codes registered under the CCA, but its jurisdiction is limited by Section 86AA of the CCA to awards of up to A$750,000. Private enforcement proceedings commenced or heard in the federal courts are subject to the Federal Court Rules 2011 (the Federal Court Rules). The CCA also confers limited jurisdiction for private antitrust enforcement on the several courts of the Australian states, although in practice claims under the CCA are more commonly pursued in the Federal Court.
While a framework exists for private enforcement actions, including by making use of provisions in the CCA that allow for follow-on proceedings (discussed further in Section X), such private enforcement actions are not common in Australia. This is likely due to the difficulties in assessing damage suffered as a result of anticompetitive conduct, the high cost of conducting proceedings in the Federal Court and potentially a lack of effective compensation mechanisms such as treble damages, which in other jurisdictions are perceived to create greater incentives for private litigation.
The CCA contains a number of provisions that extend the prohibitions on anticompetitive conduct beyond Australia's borders. Section 5(1) of the CCA extends the application of the prohibitions in Part IV of the CCA to conduct engaged in within and outside Australia by bodies corporate incorporated or carrying on business in Australia, and by Australian citizens or persons ordinarily resident in Australia. Similarly, prohibitions on exclusive dealing and resale price maintenance are extended to any person outside Australia if that person is supplying goods or services to persons in Australia. Additionally, the misuse of market power prohibitions in the CCA are extended by virtue of Section 5(1A) of the CCA to New Zealand citizens, residents, bodies corporate and corporations carrying on business in New Zealand.
The extraterritorial effect of the CCA's prohibitions against cartel conduct and the extraterritoriality provisions set out in Section 5 of the CCA were examined in Norcast SárL v. Bradken Limited,4 where the court found that cartel conduct in the form of bid rigging did not need to occur in Australia or relate to an Australian market for the court to have jurisdiction over the conduct in question. In that case, it was sufficient that the corporations involved in the bid rigging had practical links to Australia and that one of the participants was an Australian corporation. However, the application of the Norcast decision may be called into question in future cases brought under the new cartel conduct provisions introduced in 2017 on account of the requirement that the conduct has an effect on trade or commerce within, to or from Australia.
Section 5 of the CCA was amended in 2017 so that private parties are no longer required to seek ministerial consent before relying on extraterritorial conduct in private competition law actions. The amendment removed a potentially cumbersome roadblock to private litigants when seeking redress for harm suffered as a result of a contravention of the CCA.
The CCA permits a person (including a corporation) to seek damages, declarations that all or part of a contract is void, divestitures and other remedies if he or she has suffered loss or damage, or is likely to suffer loss or damage, as a result of conduct committed in contravention of Part IV of the CCA. Any person can seek an injunction in relation to a contravention or proposed contravention of Part IV of the CCA, other than in relation to a breach of the prohibition on anticompetitive mergers and acquisitions.
In relation to representative proceedings (also known as class actions), a person will have standing to commence proceedings as a representative applicant under the Federal Court Act where the person has sufficient interest to bring an action on his or her own behalf.
The process of discovery
There are a range of processes for obtaining access to documents from opposing parties and non-parties in private enforcement actions in Australia.
Prior to commencing proceedings in the Federal Court, a person can seek preliminary discovery to ascertain the identity or whereabouts of a prospective defendant or, more commonly in private competition enforcement actions, to determine whether to commence proceedings against a prospective defendant. To obtain preliminary discovery, the person must first make an application to the court. The court will only make an order for preliminary discovery to determine whether to commence proceedings if each of the following matters is satisfied:
- the person reasonably believes that he or she may have the right to obtain relief from a prospective defendant;
- the person has made reasonable inquiries but does not have sufficient information to decide whether to commence proceedings;
- the prospective defendant is likely to have documents that are directly relevant to the question of whether the person has the right to obtain relief from the prospective defendant; and
- the documents will assist with making the decision as to whether to bring proceedings.
In Australia, there is no automatic right to discovery once proceedings have commenced. Rather, a party who wishes to obtain discovery from another party to the proceedings must first make an application to the court for an order that another party to the proceedings give discovery. A party to proceedings in the Federal Court must not apply for an order for discovery unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.5 In addition to discovery, parties to proceedings can also obtain specific documents from opposing parties without a court order by issuing a notice to produce. Notices to produce are more limited in scope than discovery.
A party to proceedings can also obtain documents from non-parties by seeking an order for non-party discovery or seeking leave from the court to issue a subpoena to produce documents. A party can also seek leave to issue a subpoena to a non-party requiring that person to attend court to give evidence.
However, there are limitations on the ability of a private litigant to obtain documents from the ACCC in proceedings to which the ACCC is not a party. In July 2009, the CCA was amended to enhance the protection afforded to information given in confidence to the ACCC that relates to a breach, or possible breach, of a cartel prohibition (protected cartel information).6 As a result of the amendments, the ACCC is not required to produce to a court or tribunal, or to give discovery or produce to a person, a document containing protected cartel information, or to disclose protected cartel information to a court or tribunal, except by leave of the court or tribunal.
Use of experts
Expert evidence is commonly used in private competition enforcement actions in Australia. An expert may be appointed by the court to inquire into and report on any question or facts relevant to any question arising in a proceeding, or a party to a proceeding may call an expert to give expert evidence at a trial. The procedural rules vary depending on whether the expert is a court-appointed expert or an expert called by a party to the proceedings. In both cases, however, the expert is required to prepare a report outlining his or her opinion on the particular questions that he or she has been asked to opine on. The expert may then be required to give oral evidence at the hearing.
The role of an expert is to assist the court on matters relevant to his or her area of expertise. An expert's paramount duty is to the court and not to the person who has retained him or her.7 Accordingly, experts appointed by parties to the proceedings are required to adhere to strict guidelines in the provision of their evidence, including in relation to the form of their report.
In Australia, it is common in antitrust enforcement actions involving multiple competing expert witnesses for expert evidence to be presented concurrently, also known as a 'hot tub'. This practice involves calling all the experts to give evidence at the trial concurrently. Each expert presents his or her opinion, and then each other expert is given an opportunity to respond. The judge will also ask questions of the experts, and cross-examination of the experts by the parties may be permitted.
In Australia, representative proceedings (or class actions) are governed by Part IVA of the Federal Court Act. The Supreme Court of each Australian state also has jurisdiction to hear representative proceedings, although not all jurisdictions have a specific class action regime governing the conduct of those proceedings. As noted above, in practice, claims under the CCA are more commonly pursued in the Federal Court.
To commence a representative proceeding in Australia, the following requirements must be met: there must be at least seven persons who have claims against the same person or persons; the claims of all these persons must arise out of the same, similar or related circumstances; and the claims of all these persons must give rise to a substantial common issue of law or fact.
Generally, there is no requirement for a person to give consent to be a group member of a representative proceeding, and the courts operate on an opt-out basis (i.e., the courts will fix a date by which group members of a representative proceeding can opt out of the representative action by giving notice in writing). In Australia, the representative applicant bears the costs burden in the proceedings. In the absence of any agreement to the contrary, group members are not required to contribute to the costs of the proceedings or to any costs orders made against the representative applicant in the proceedings. Accordingly, there is often very little incentive for group members to opt out of representative proceedings in Australia.
Once a representative proceeding has been commenced, it is subject to strict supervision by the court, and it cannot be settled or discontinued without the court's approval. In addition, a representative applicant is unable to withdraw as the representative applicant without the leave of the court. This limits the parties' flexibility in terms of alternative dispute resolution (ADR) processes and can hinder settlement efforts. Further information on the settlement processes for representative proceedings is set out in Section XII.
Punitive and exemplary damages are not available as remedies for private enforcement actions in Australia. Rather, damages are assessed on compensatory principles. Defendants are jointly and severally liable (i.e., each person involved in the contravention that led to the litigant's loss and damage is jointly and severally liable for that loss). Defendants may seek to join additional defendants involved in a contravention to the proceedings. Damages and compensation orders available under Sections 82 and 87 of the CCA are limited to only the actual amount of loss or damage suffered by the litigant from the contravention of the CCA. This is consistent with the general Australian approach of using damages and other forms of monetary compensation to restore a litigant to the position he or she would have enjoyed had the contravening conduct or breach not occurred. Therefore, when assessing damages in private antitrust enforcement actions, the courts do not consider any fines imposed on the respondent as part of public enforcement action taken by the ACCC.
If a court has ordered a defendant to pay a pecuniary penalty as a result of enforcement action by the ACCC and has also made a compensation order as a result of a private enforcement action, and the defendant lacks the financial resources to pay both, the court is required to give preference to the compensation order as required by Section 79B of the CCA. There is also a rebuttable presumption under Section 51A of the Federal Court Act that interest is payable on actions to recover any money (including any debt or damages or the value of goods) at such rates as the court considers fit.
There is no established pass-on defence in Australia. The current relevance of passing on in Australia is limited to the assessment of damages under Section 82 of the CCA. As noted above, Australia's damages regime is intended to compensate for actual loss or damage suffered. Damage awards may be reduced (or not awarded at all) if an individual has passed on some or all of that loss or damage to subsequent purchasers.
There are currently no limitations on follow-on claims for private actions against parties who have been subject to public enforcement action. While the ACCC has an immunity policy for self-reporting cartelists that can grant immunity from criminal prosecution and ACCC-initiated civil proceedings for cartel conduct, this immunity cannot be granted in respect of private enforcement actions for the same cartel behaviour.
Under Section 83 of the CCA, findings of fact and admissions made in earlier proceedings, including proceedings brought for contraventions of cartel conduct prohibitions, are prima facie evidence of those facts or admissions in later proceedings for damages or compensation orders. Prior to the 2017 reforms discussed in Section I, admissions of fact made by a party in earlier proceedings were not expressly included in Section 83 and the ability to use admissions of fact as prima facie evidence of those facts in later proceedings was unclear. A corollary of this development is that it may adversely impact the ACCC's ability to resolve enforcement proceedings with private parties by consent, given that a consent-based outcome would not avoid the risk of admissions being relied upon in follow-on claims.
There have been limited recent follow-on proceedings in Australia in respect of cartel conduct. Follow-on proceedings that have been pursued and settled in the past 10 years include a cardboard packaging cartel,8 a rubber chemicals cartel9 and an air cargo cartel.10
Australian courts recognise legal professional privilege. A party to a private competition enforcement action will not be required to produce a privileged document to another party through compulsory court processes. A person is also not required to produce any document that would disclose information that is the subject of legal professional privilege to the ACCC during an investigation.
In Australia, there are two types of legal professional privilege: legal advice privilege and litigation privilege. These exist at common law and under the Evidence Act.11 Legal advice privilege extends to confidential communications between a lawyer and his or her client, or the contents of a confidential document prepared by the client, lawyer or another person, for the dominant purpose of the lawyer providing legal advice to the client. Litigation privilege extends to a confidential communication between the client and another person, or between a lawyer acting for the client and another person; and the contents of a confidential document that was prepared for the dominant purpose of the client being provided with professional legal services in actual or anticipated legal proceedings.
Under Division 28.1 of the Federal Court Rules, the parties must consider options for ADR, including mediation, as soon as reasonably practicable. Prior to commencing proceedings in the Federal Court, parties must file a 'genuine steps statement' where the parties outline the steps that have been taken to resolve the dispute, and, if no steps have been taken, why this is the case.12
If the parties consider that ADR is appropriate, an application may be made to the court seeking an order that the proceeding or relevant part of the proceeding be referred to an arbitrator, mediator or suitable person, and that the proceedings be adjourned or stayed until that process concludes or is terminated. The Federal Court also has the discretion to order parties to attend ADR if it considers ADR appropriate.
The Federal Court, at its discretion, may award costs to the successful party on an indemnity or solicitor–client basis. An order for indemnity costs might be made where a party fails to accept an offer of settlement and subsequently achieves an outcome that is less favourable than the proposed settlement offer.
In representative proceedings, the Federal Court has a supervisory role in relation to class action settlements, and parties must first obtain the Federal Court's approval prior to settling the proceeding.13
The Federal Court has developed its own criteria for approving class action settlements.14 The parties will usually need to persuade the court that the proposed settlement is fair and reasonable having regard to the claims made on behalf of group members bound by settlement; and the proposed settlement has been undertaken in the interests of group members, as well as those of the representative applicant, and not just in the interests of the representative applicant and the defendant.
As discussed in Section XII, it is a requirement of Division 28.2 of the Federal Court Rules that parties consider options for ADR as soon as reasonably practicable, and each party must file a genuine steps statement.
A party may apply to the court for an order referring all or part of the proceedings to mediation or arbitration and to have the proceedings stayed. If the court orders that the parties proceed to arbitration, then either party may apply to the court to have an arbitrator appointed and make orders about how the arbitration is to be conducted, including how the arbitrator's fees will be paid and when the arbitration must be completed. If the arbitration is successful, the parties may apply to the court to make an order in terms of the award set out by the arbitrator. In practice, arbitration is not widely used for private antitrust enforcement in Australia.
Indemnification and contribution
A private litigant can bring a damages claim under Section 82 of the CCA against any person involved in the contravention that caused his or her loss or damage. Each person involved in the contravention will be jointly and severally liable for the loss or damage suffered as a result. In Australia, a private litigant is entitled to commence proceedings against a single defendant in circumstances where there are multiple potential defendants that would be jointly and severally liable for the loss or damage caused if joined to the proceedings.
Future developments and outlook
It remains to be seen whether the recent developments in Australian antitrust law, including the 2017 reforms to the CCA and the ACCC's continued focus on cartel conduct, will lead to an increase in private antitrust follow-on litigation. Although it is still early days, private enforcement actions remain relatively rare, but the commencement of the J Wisbey & Associates v. UBS & Ors class action, a private antitrust follow-on action as a result of international enforcement action, may be a sign of things to come. Further, the increasingly strong presence of litigation funders in Australia may enable more private litigants to bring proceedings under the antitrust provisions of the CCA. Additionally, given both the increasing significance of data and the ability to extract value from data in the Australian economy and the growing market power of digital platforms such as Google and Facebook, it can be expected that private antitrust actions such as Epic Games v. Apple and Dialogue v. Instagram, may become increasingly common in the near future.
1 Tom Bridges is a partner at Webb Henderson. The author acknowledges the valued assistance of Bronwen Peberdy and Rosie Finlayson, lawyers at Webb Henderson, in the preparation of this chapter.
2 Competition and Consumer Act 2010 (Cth).
3 Federal Court of Australia Act 1976 (Cth).
4 Norcast SárL v. Bradken Limited (No. 2)  FCA 235.
5 Federal Court Rules 2011, Rule 20.11.
6 Trade Practices Amendment (Cartel Conduct and other Measures) Bill 2008, Explanatory Memorandum, 87, [7.1].
7 See, for example, Federal Court of Australia, Practice Note GPN-EXPT.
8 Jarra Creek Centra Packing Shed Pty Ltd v. Amcor Ltd.
9 Wright Rubber Products Pty Ltd v. Bayer AG [No. 3].
10 De Brett Seafood Pty Ltd v. Qantas Airways Ltd.
11 Sections 118 and 119 of the Evidence Act 1995 (Cth). Corresponding provisions are included in the evidence law of New South Wales, Victoria, Tasmania, Australian Capital Territory and Northern Territory.
12 Section 6 of the Civil Dispute Resolution Act 2011 (Cth).
13 Section 33V of the Federal Court Act.
14 Federal Court of Australia, Practice Note GPN-CA.