AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
certain ACCC decisions, including authorisations, merger authorisations, and, under the new and man - datory merger regime (fully effective from 1 January 2026), all merger reviews. The Tribunal comprises a presidential member, who must be a judge of the Fed - eral Court, and two non-presidential members, who possess knowledge or experience in industry, eco - nomics, commerce, law or public administration. The Tribunal can hear certain appeals from ACCC decisions, but otherwise does not determine litiga - tion matters under the CCA. Appeals from decisions of the Federal Court are heard by the Full Federal Court and by the High Court (sub - ject to special leave being granted). 2.3 Impact of Competition Authorities 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. Accord - ingly, 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 com - menced 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 inter - national nature of the conduct” even if the eco - nomic 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 com - mercial agreement between it and Epic required all disputes to be determined in California courts. The ACCC made submissions concerning the public poli - cy in favour of disputes involving Australia’s competi - tion 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 pri - mary 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 mate - rial that was before the ACCC. 2.4 Proof 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 com - petition 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 accept - ed as being a standard that is less than the balance of
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