AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
Importantly, the expert’s paramount duty is to the court, not the retaining party, and the report should state any limits of expertise, any material uncertainty and any testing or sensitivity analysis undertaken. The Federal Court’s Practice Notes typically require the expert report to annex various documents, such as the letter of instruction from the relevant party. Where there are multiple competing expert witnesses, it is common for their evidence to be presented con - currently through what is referred to as a joint expert conference (colloquially referred to as a “hot tub”). Commonly, judges will also request that experts seek to agree and file a joint expert report identifying both matters that are agreed upon and key differences, before trial. The court will then direct the experts to confer (often without lawyers present, and sometimes before a registrar or other facilitator) to pinpoint each issue on which they agree or disagree and to record the reasons for any divergence. The resulting joint report is drafted and signed by the experts themselves and becomes a central procedural document for the trial. In larger or more complex matters, particularly class actions, the court may supplement this process by appointing an independent referee to investigate specified factual questions and produce a report for adoption by the court. While the approach to expert evidence varies depend - ing on the matters in issue and the presiding judge’s preferences, in a hot tub, each expert typically pre - sents their opinion individually or jointly (where aligned) and then each expert witness is given the opportunity to respond. The experts can be cross-examined, and the judge may pose questions directly. A party may also seek to adduce survey evidence – that is, responses or statements obtained outside of court through structured surveys. 8. Damages 8.1 Damages: Assessment, Passing On and Interest In a claim for damages, the applicant may recover the actual loss or damage suffered by the conduct in contravention of competition laws (Section 82, CCA).
The CCA does not provide any guidance as to how damages are to be quantified. While cases state the measure of damages is similar to that recoverable under the common law in tort (that is, to put the per - son in the position they would have been in had the conduct not occurred), damages are not confined to those recoverable in tort. Punitive or exemplary damages are not available for competition law contraventions. There are some recent examples of private actions/ class actions for damages under the CCA. Of those that are commenced, many are settled out of court, with some examples outlined below. • Following the ACCC’s successful prosecution of Visy for engaging in cartel conduct with its com - petitor, Amcor Limited, in which the Federal Court imposed civil penalties of AUD38 million ( ACCC v Visy Industries Holdings Pty Ltd [No 3] (2007) 244 ALR 673), a follow-on class action seeking AUD466 million in damages settled for AUD95 million ( Jarra Creek Central Packing Shed Pty Ltd v Amcor Lim- ited [2011] FCA 1402). A second private damages action commenced by Cadbury Schweppes was reported to have settled for AUD235 million; how - ever, the terms of the settlement were confidential, so it is not possible to verify that figure. • In 2014, the Federal Court approved a settle - ment of AUD38 million in the air cargo cartel class action, brought by air freight customers in rela - tion to alleged cartel conduct by various airlines between 2001 and 2006 regarding the fixing of fuel and other surcharges. This settlement followed the ACCC’s successful obtaining of agreed penalties against multiple airlines. Sections 51A and 52 of the Federal Court Act provide for the making of orders for the inclusion of interest in judgments.
18 A NTITRUST LI T IGATI O N 2026
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