AUSTRALIA Trends and Developments Contributed by: Elizabeth Avery, Simon Muys, Sarah Lynch and Owen Fischbein, Gilbert + Tobin
also successful, with the Court finding that developers and consumers paid inflated commissions due to the conduct, with a separate hearing to determine damag - es and relief to follow. Apple and Google have 28 days to appeal. The written judgment has been embargoed at the time of writing due to confidentiality claims. New merger control regime Another critical development in Australian compe - tition law during 2025 was the enactment of a new merger control regime. This represents a fundamental overhaul of the earlier informal and voluntary merger clearance process based on judicial enforcement, which is replaced by a mandatory and suspensory regime and administrative enforcement. From a litiga - tion perspective, the new process introduces a form of limited merits review by the Australian Competition Tribunal, which is available to merger parties that do not accept the ACCC’s decision to block a notified transaction. Given the high level of prescription in the new regime, it also appears likely that there will be a range of interpretive issues that may give rise to liti - gation in the Federal Court, including the application of the regime to particular types of transactions and company structures. Parties might also look to seek rectification from the Court where there has been a failure to notify a deal, which results in it being auto - matically void. Finally, as noted above in relation to the Epic case, we are seeing a growth in antitrust class action litiga - tion in Australia. This continues to grow in relation to both competition and consumer law issues, as well as follow-on litigation in the wake of ACCC and private enforcement proceedings. We discuss a few of these trends below. A focus by the ACCC on the extent of an “understand - ing” and widening the scope of cartel enforcement Over recent years, the ACCC has sought to widen the net for cartel litigation in Australia in two ways: • the regulator has brought a number of price fix - ing and related cartel cases involving unilateral conduct by one party, such as requests or threats being made to a competitor, on the basis of an
allegation of an attempt to engage in the conduct or an allegation of an attempt to induce another party to engage in the conduct; and • the ACCC has also sought actively to widen the notion of what constitutes an “understanding” between competitors. Unilateral attempts and attempts to induce cartel conduct In relation to the first of these, there have been a string of cases over recent years in which the ACCC has alleged that a party has engaged in cartel conduct by unsuccessfully “attempting” to reach an under - standing with a competitor, or “attempting to induce” a competitor to do so. The most recent example came to trial in April 2025 (ACCC v Qteq). This case involved an Australian min - ing services company that sold and installed pressure gauges for coal seam gas wells. The ACCC alleged that, between 2017 and 2019, the company and its executive chairman engaged in an attempt to engage in cartel conduct or an attempt to induce others to engage in cartel conduct, in various ways by attempt - ing to prevent others from participating in competitive processes for gauges run by its major customer. In several instances, the Court found that various off- hand verbal comments and informal communica - tions, such as text messages, when read together, were enough to constitute an attempt to induce cartel conduct. Widening the meaning of “understanding” This year, the Courts heard arguments about what is needed to establish an “understanding” between competitors. The first of these was an appeal to the Full Federal Court in ACCC v BlueScope Steel. In that case, the ACCC argued that the Australian steel supplier, Bluescope, had attempted to induce certain price outcomes with competitors. Importantly, at first instance, his Honour Justice O’Bryan adopted a low threshold for the requirement to establish an under - standing and did not require that parties communi - cate a shared commitment to act in a certain way. The appeal has been dismissed, and the Full Federal Court has confirmed that commitment is not neces - sary in every case to establish an understanding. This represents a material broadening of Australia’s cartel
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