AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
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 mat - ters is higher, at the level of “beyond a reasonable doubt”. 2.5 Pass-On Defence 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 Qan - tas Airways Ltd (2008) 251 ALR 166, the Court com - mented 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. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations 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 car - tel offences became law in Australia. 3.2 Typical Length of Private Antitrust Litigation The length of competition law litigation varies signifi - cantly, depending upon the circumstances. Proceed - ings at first instance can often exceed two years to complete, but could be longer, depending on the num - ber 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 sepa - rate hearing on the question of remedies. In addition to this, time must be allowed for the delivery of judg - ment, 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.
4. Class and Collective Actions 4.1 Statutory Basis
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 proceed - ings. To bring a representative proceeding, the following criteria must be satisfied:
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