AUSTRALIA Trends and Developments Contributed by: Elizabeth Avery, Simon Muys, Sarah Lynch 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
Overview Recent years in Australia have seen a trend of reduced Australian Competition and Consumer Commission (ACCC) antitrust litigation, while, at the same time, experiencing a marked increase in private litigation in relation to unilateral conduct under section 46 (misuse of market power and Australia’s analogue to abuse of a dominant position prohibition in the EU, and monop - olisation in the US). In 2024, the ACCC commenced only a single anti - trust proceeding, being an application in late 2024 in relation to alleged price fixing by service providers involved in bidding for Government defence contracts and associated senior executives. In August 2025, the ACCC commenced proceedings against Google on a non-contested basis, in which Google admitted to anticompetitive understandings with mobile network operators in Australia in relation to preinstallation of Google Search on Android mobile phones, resolving a long-running investigation into alleged anticompeti - tive conduct by Google in relation to Google Search. The parties will jointly submit to the Court that Google pay a AUD55 million penalty. A Federal Court hearing on a penalty is pending at the time of writing. Nota - bly, in 2024, the ACCC accepted court-enforceable undertakings from mobile network operators (Telstra, Optus and TPG) in related investigations regarding the same agreements. There have been no further anti - trust cases taken by the ACCC in the 2025 calendar year (to date). However, the ACCC has a number of active ongoing antitrust investigations.
ACCC’s Ongoing Cases In Australia, the ACCC has a combined role as a competition and consumer law enforcement agency. Over the 2024-25 period, the ACCC had a greater focus on consumer law cases, commencing 16 new cases, accepting nine court-enforceable undertak - ings, issuing 44 infringement notices on 16 entities and accepting one public administrative resolution. It also undertook a number of wider market inquiries, spanning multiple sectors including digital platforms, supermarkets and energy markets. Consumer law penalties secured by the ACCC have also started to match penalties imposed for competi - tion law breaches, with national airline, Qantas, agree - ing in late 2024 to a AUD100 million penalty (the larg - est consumer law penalty to date) and an additional AUD20 million in compensation to settle the ACCC’s prosecution of Qantas’ approach to selling tickets for flights during and post COVID. Epic Games v Apple and Epic Games v Google While ACCC antitrust enforcement declined in the previous year, private enforcement and class actions increased. In Epic Games, Inc v Apple Inc; Epic Games, Inc v Google LLC [2025] FCA 1012 (Beach J, 12 August 2025), the first contested liability deci - sions finding a breach of section 46 were issued by the Federal Court of Australia. Justice Beach found that Apple and Google had misused their market pow - er by restricting the use of alternative app distribution methods and in-app payment methods on Apple or Android mobile devices since 2017. The Court dis - missed claims in relation to exclusive dealing and unconscionable conduct. Related class actions were
24 CHAMBERS.COM
Powered by FlippingBook