AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
• seven or more persons have claims against the same person; • the claims of all those persons are in respect of, or arisen out of, the same, similar or related circum - stances; and • the claims of all those persons give rise to a sub - stantial common issue of law or fact. Representative proceedings must identify the group of persons on whose behalf the claim is brought, typical - ly by specifying the shared characteristics that define group membership. A claim is typically commenced by one or two lead applicants who represent the class. 4.2 Opting In or Out The Federal Court Act provides for an “opt-out” mod - el whereby the outcome of the proceedings will bind persons who are within the defined group unless they opt out by written notice by a date fixed by the court. 4.3 Direct/Indirect Purchasers Direct and indirect purchasers have standing to bring representative proceedings for damages arising from contraventions of the competition provisions of the CCA, provided that the statutory criteria described above under the Federal Court Act are satisfied, and each group member can establish that they have suf - fered loss or damage as a result of the contravening conduct. 4.4 Class Certification There is no requirement for a class certification for proceedings to be brought as a class action. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law The CCA not only applies to conduct in Australia but also to conduct outside Australia by: • bodies corporate incorporated in or “carrying on business” within Australia; • Australian citizens; or • persons ordinarily resident within Australia. The extraterritorial reach of Australia’s competition laws may be even broader than that stated above.
This is by virtue of the State and Territory Competi - tion Codes, which were enacted due to constitutional limitations on Commonwealth legislative power. The Competition Codes expanded the reach of Australia’s competition laws to persons (or companies) “other - wise connected” with Australia. The phrase “or other - wise connected with” has been considered in passing judicial commentary from the Federal Court in ACCC v Yazaki Corporation [2015] FCA 1304. In that case, it was interpreted as being capable of expanding the extraterritorial reach of Australia’s competition laws, although the matter has yet to be conclusively deter - mined. Several of Australia’s consumer law prohibitions require the relevant conduct to occur “in trade or commerce,” which is defined as trade or commerce within Australia or between Australia and places out - side Australia. Once it can be shown that the CCA applies to the facts in issue, the Federal Court (and other courts) will generally only assume jurisdiction when the respond - ent or defendant is validly served with court process or a requirement for service is dispensed with by court order. Generally, it is necessary to obtain leave to serve pro - cess overseas, and to obtain that leave, the applicant (including the ACCC) needs to establish a prima facie case for the relief claimed. However, it is not neces - sary to establish this for each cause of action relied upon, only that it can be made out for any one of the causes of action (Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153). 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure Access to Documents Pre-Commencement The ACCC has broad statutory powers to compel the provision of information and documents, and conduct oral examinations of individuals, if it has reason to believe that a person is capable of providing informa - tion or documents regarding a matter that constitutes or may constitute a contravention of the CCA (Section 155, CCA). These investigatory powers cease to apply
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