AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
substantial purpose of substantially lessening competition; and (b) 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 pay - ments (see 1.2 Recent Developments ). 1.2 Recent Developments There has been a significant increase in private anti - trust litigation in Australia in recent years, particularly in relation to claims involving an alleged misuse of market power, where several cases have been com - menced since 2017 (following amendments that were made to the provision in late 2017). However, a num - ber of these have been resolved commercially or with - drawn. The first contested liability cases under the amended misuse of market power provision to come to judg - ment were commenced by Epic against each of Goog - le 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 fore - close 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 mar - ket 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 par - ties when responding to conduct engaged in by larger or substantial competitors. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis 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 “fol - low-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. 2.2 Courts 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) func - tions as a form of limited merits review in relation to
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