AUSTRALIA Trends and Developments Contributed by: Elizabeth Avery, Simon Muys, Sarah Lynch and Owen Fischbein, Gilbert + Tobin
laws, departing from prior case law that required a mutual commitment to establish an understanding. The importance of establishing a “shared commit - ment” in the context of competition law was also tested in Australia’s highest court in 2025, when the High Court of Australia heard ACCC v Hutchinson. The case arose out of industrial disputes in the con - struction industry and was focused on certain pro - hibitions against secondary boycotts. Nonetheless, the decision is broadly significant. A majority of the High Court found that responding to a unilateral threat from one party did not give rise to an “understanding” for the purposes of competition law. The High Court emphasised the earlier and traditional approach to the term as requiring the ACCC to establish proof of express or tacit communication between the parties of a commitment on the part of one party to do that which the other party has demanded of it. There is an apparent tension between the High Court’s judgment in Hutchinson and the Full Federal Court decision in Bluescope. Increased private litigation and class actions, particularly for the misuse of market power Australia has experienced a rise in private antitrust litigation, especially in relation to the misuse of market power prohibition in section 46 of the Competition and Consumer Act 2010. This section is Australia’s analogue to the “abuse of a dominant position” pro - hibition in the European Union and the concept of monopolisation in the United States. The legal test for misuse of market power was radically remodelled in late 2017 in a way that was generally seen as lowering the threshold for bringing cases, by allowing claims based only on the effect of conduct on competition in a relevant market by a firm with a substantial degree of market power. Previously, the test had focused on establishing a predatory purpose of damaging or eliminating a competitor, with an additional element requiring a claimant to prove the defendant was “tak - ing advantage” of its substantial market power. Since late 2017, there have been 18 cases com - menced, and all but two of these have involved private litigants. This is a substantial increase from the years prior to the change, when private litigation of section 46 was very limited. Many of the early cases under
the remodelled prohibition have been resolved com - mercially or are still pending in Court. Nonetheless, as noted above, 2025 featured the first contested liability cases to come before Australian courts under the amended misuse of market power test by Epic against both Apple and Google in relation to their app stores and payment systems. These are also the subject of separate class actions on behalf of classes of app developers. The matter was heard by the Federal Court in early 2025, and the Court’s deci - sions were handed down partially in favour in August 2025, finding that both Apple and Google had mis - used their market power. Similarly, the class action claims brought by app developers and consumers were successful on liability. The reasons for judgment have not been publicly released at the time of writing. There is a range of other private litigation, including class action cases relating to competition and con - sumer law, at various stages of progress before the Courts, including a number of class actions and mis - use of market power cases. Examples include cases against: • the largest two Australian supermarkets (Coles and Woolworths) in relation to alleged misleading price claims; • the discount airline, Jetstar, in relation to cancelled flights during COVID; • Johnson & Johnson, in relation to the marketing of branded cold and flu medicines; • Sony, alleging misuse of market power in relation to access to the PlayStation platform; and • Google, where it has been alleged it misused its market power (and other competition law claims) in relation to adtech services. Litigation arising from the new merger rules Finally, as noted above, from 1 January 2026, Austral - ia will move from its long-standing voluntary merger regime to a mandatory and suspensory notification process. While this will shift the clearance model away from an “enforcement” framework to an administrative process, it will ironically create significant scope for additional litigation, primarily in the Australian Com - petition Tribunal.
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