AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
Gilbert + Tobin Level 35 Tower 2/200 Barangaroo Ave Sydney NSW 2000 Australia Tel: +61 02 9263 4000 Web: www.gtlaw.com.au
1. Introduction 1.1 Current Framework for Private Antitrust Litigation 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-competi - tive 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 Com - mission (ACCC) is the primary enforcer of competi - tion laws, and can bring civil enforcement proceed - ings 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 pri - vate actions for damages and certain other rem - edies (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 mis - use 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 mar - ket power case. The High Court held that BHP’s refusal to supply a variety of steel bar to a down - stream 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 competi - tion law issues, particularly around Section 45, in relation to anti-competitive agreements. The Full Court: (a) dismissed Seven Network’s appeal and clari - fied 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
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