AUSTRALIA Law and Practice Contributed by: Elizabeth Avery, Simon Muys, Jacqueline Reid and Owen Fischbein, Gilbert + Tobin
Where the applicant is the ACCC, the court is also required to consider the harm to the public interest, market actors and consumers flowing from the poten - tially detrimental effects on competition if the injunc - tion is not granted. Where the applicant is a private party, the court will typically require an undertaking as to damages to be given to protect the respondent if an injunction turns out to have been wrongly granted. If such an under - taking cannot be given, the application will likely be refused. The requirement for an undertaking as to damages does not apply where the applicant is the ACCC (Sec - tion 80 (6), CCA). The court must therefore take into account the detriment that may be caused to the respondents (and third parties associated with them) by the grant of an injunction that may not be mitigated by an award of damages Finally, injunctions are no longer required in merger matters, because a failure to notify a merger to the ACCC which was required to be notified results in that transaction being automatically void (and having always been void) (Section 45AZA, CCA). 10.2 Alternative Dispute Resolution Mediation and arbitration are available and encour - aged to assist in the quick and efficient resolution of cases. In the early stages of the proceeding, the judge will typically consider whether ADR processes are likely to assist and may order the parties to attend mediation without their consent.
ers and consumers, alleging various competition laws contraventions, including misuse of market power and unconscionable conduct, in relation to Apple and Google requiring developers to use their respective payment systems for apps and in-app purchases. Both actions are funded partly by a litigation funder. The law firms representing the class are deferring payment of the portion of their legal fees that are not being funded by the litigation funder. The first stage of the trial concluded on 5 July 2024. The air cargo cartel class action, which commenced in 2007 and settled in 2014, was also funded by a third party. 11.2 Costs In civil cases, costs generally “follow the event”. This means that the successful party is generally entitled to an order that the unsuccessful party pay its legal costs. However, costs orders are usually made on a “party/party” costs basis, which only accounts for a proportion of the total legal costs actually incurred by the successful party. The court may depart from the usual party/party order and order more generous indemnity costs if there is “some special or unusual feature in the case”. Indem - nity costs entitle the recipient to all its costs apart from those unreasonably incurred. In civil cases commenced by the ACCC, the court can order indemnity costs against the ACCC where the respondent made a reasonable offer of settlement and still got rejected. The court may order an applicant to give security for the payment of costs that may be awarded against them (Section 56, Federal Court Act). An applica - tion for an order to provide security for costs must be accompanied by an affidavit setting out the facts relevant to the application, including whether there is reason to believe that the applicant will be unable to pay the respondent’s costs if so ordered; whether the applicant is ordinarily resident outside Australia; whether the applicant is suing for someone else’s benefit; whether the applicant is impecunious; and any other relevant matter (Rule 19.01, Federal Court Rules).
11. Funding and Costs 11.1 Litigation Funding
Third-party litigation funding is permitted in Australia. Third-party litigation funding is common in Australia for class actions, although there have been a limited number of competition class actions compared to oth - ers, such as securities class actions. In June 2022, twin class actions were launched against Apple and Google on behalf of app develop -
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