Availability of civil claims
Scope for civil claims in Australia
Stand-alone and follow-on civil actions are available in Australia.
A person (including a corporation) who has suffered loss or damage, or is likely to suffer loss or damage, as a result of a breach by another of the Competition and Consumer Act 2010 (Cth) (“CCA”) can bring proceedings against that other person in the Federal Court of Australia seeking compensation and other remedies (including injunctions, declarations and orders declaring all or part of a contract void).1 A person who brings such proceedings is known as the ‘applicant’ and the defendants to the proceedings are known as ‘respondents’.
The CCA prohibits a range of anti-competitive conduct, including cartel conduct, resale price maintenance, anti-competitive exclusive dealing, misuse of market power, anti-competitive mergers and acquisitions and other anti-competitive agreements, arrangements and understandings. Civil action can be brought in respect of all such infringements, but private litigants cannot seek an injunction to stop an anti-competitive merger or acquisition from proceeding.
Civil claims may be brought by both direct and indirect purchasers, as well as competitors and any other persons who have suffered or are likely to suffer loss or damage by reason of the contravening conduct.
Under the CCA, proceedings for compensation and other orders can also be brought against persons ‘involved in the contravention.’ A person will be involved in a contravention if: (i) such persons have been knowingly involved in a contravention; (ii) induced a contravention; (iii) aided or abetted a contravention; or (iv) conspired with others to give effect to a contravention of the CCA.2 Both natural persons (such as directors, officers or employees) as well as corporations can be liable for being “involved in a contravention.”
Proceedings for breach of the CCA can be brought against foreign corporations who have engaged in contravening conduct in Australia or, where the conduct takes place overseas, who are carrying on business in Australia.3 However, ministerial consent is required to bring proceedings against foreign corporations for conduct engaged in outside Australia.4
Applicable limitation periods
The applicable limitation period depends on the section of the CCA under which proceedings are brought. Proceedings can be brought by a private litigant under Section 82 of the CCA seeking damages to compensate it for loss and damage suffered by conduct in contravention of the CCA. Proceedings under Section 82 must be commenced within six years of the date on which the cause of action that relates to the conduct accrued. The cause of action will accrue when loss or damage is suffered, rather than when it is discovered.5 For instance, in cartel cases brought by affected customers, this is likely to be the date goods were purchased at a cartelized price. There is no ability for this limitation period to be extended, including in cases where the defendant may have deliberately concealed its contravention of the CCA.
Compensation can also be sought by a private litigant under Section 87(1) of the CCA,6 which is not of itself subject to any limitation period. Section 87 grants the court a broad discretionary power, which allows the court to make such orders as it considers appropriate to compensate a party to the proceedings, in whole or in part, for the loss or damage it has suffered, or to reduce or prevent the loss or damage. Section 87(1) does not grant a stand-alone right of action and the relevant limitation period that applies to the orders sought under Section 87(1) will depend on the provision under which the proceedings are instituted. Where proceedings are brought for an injunction under Section 80 of the CCA, which has no time limit, and compensation orders are sought under Section 87(1), no limitation period will apply. However, unlike Section 82, compensation orders under Section 87 are not as of right and any award of compensation is at the court’s discretion.
A judgment of a single judge of the Federal Court can be appealed to the Full Court of the Federal Court. The Full Court is usually constituted by three judges of the Federal Court. The Full Court can consider appeals on questions of fact as well as questions of law. Appeals can be brought as of right from a final judgment, however, leave to appeal is required to appeal from an interlocutory decision.
A party seeking to appeal the decision of the Full Court may seek special leave to appeal to the High Court of Australia, the country’s ultimate appellate court. The criteria for granting special leave include that the proceedings involve a question of law that is of public importance or in respect of which the High Court is required to resolve differences of opinion within or between courts or where the interests of the administration of justice require consideration by the High Court.7
Availability of class actions for infringement of competition law and/or damages in Australia
Class actions or “representative proceedings” can be brought in the Federal Court, including in proceedings for damages for breach of the prohibitions on anti-competitive conduct in the CCA. Part IVA of the Federal Court of Australia Act 1976 (Cth) (“FCA”) sets out the detailed regime governing representative proceedings. The following criteria must be satisfied in order to bring representative proceedings in the Federal Court:
i) seven or more persons have claims against the same person;
ii) the claims of all of those persons are in respect of, or have arisen out of, the same, similar or related circumstances; and
iii) the claims of all of those persons give rise to a substantial common issue of fact or law.8
Representative proceedings must include a description of the group of persons on whose behalf the proceedings are brought. This is usually done by defining the group of persons’ common characteristics. For example, in a cartel class action, the group may be defined as persons who purchased certain types of goods in Australia within a defined period of time and can encompass both direct and indirect purchasers in this definition.
Federal Court representative proceedings operate on an “opt-out” basis, such that persons who are within the defined terms of the representative group will be bound by the outcome of the proceedings unless such persons opt out by a date fixed by the court. As part of the opt-out process, the court will require that a notice be published in such a manner as to alert group members to the proceedings and their right to opt out.
There have been a number of cartel class actions brought in Australia. To date, all of these proceedings have settled before any final hearing on liability or damages.
The Australian Competition and Consumer Commission (“ACCC”) also has the ability under Section 87(1B) of the CCA to bring proceedings on behalf of other persons in limited circumstances. Relevantly, to bring such proceedings those persons must consent in writing to the ACCC bringing proceedings on their behalf. The ACCC has not brought (and is unlikely to bring) any proceedings under this Section for breaches of the prohibitions on anti-competitive conduct to date.
Conduct of proceedings and costs
Burden of proof
The burden of proof for establishing that there has been a contravention of the CCA and the quantum of loss or damage that the applicant has suffered “by” the conduct in contravention lies with the applicant. The standard of proof in civil proceedings is the balance of probabilities.9
Where a respondent relies on certain statutory defenses, such as the joint venture defense to cartel conduct, then the burden of proof will lie with the respondent to prove the application of that defense.
Section 83 of the CCA provides that findings in public enforcement proceedings can be used in subsequent civil proceedings. There is, however, some uncertainty as to the extent to which this provision applies to admissions made by respondents in public enforcement proceedings as part of the settlement of those proceedings, as opposed to findings made by the court after a hearing.10
Joint and several liability of cartel participants
Under Section 82 of the CCA, an applicant may recover the full amount of their loss or damage from a person whose conduct in breach of the CCA caused that loss or damage. Where multiple respondents have engaged in conduct in contravention of the CCA, such as in cartel cases, those respondents will have joint and several liability to persons for the loss or damage suffered by their cartel conduct. Where proceedings are brought against multiple respondents, it is a matter for the court to apportion liability. There is not yet any established practice on how damages will be apportioned.
Where proceedings have only been brought against one or some of all potential respondents, there is an open question as to whether or not the respondents joined to the proceedings can bring a contribution claim against the other persons who engaged in the contravening conduct. Although cross-claims seeking contribution have been filed in at least one cartel class action to date as that matter settled prior to trial the question of contribution and apportionment between respondents has not yet been fully considered by the court.
Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
Discovery is available in Federal Court proceedings with the court’s leave.11 The court will not grant leave unless discovery is necessary for the determination of the issues in the proceedings 12;”>(although this threshold is likely to be satisfied in private competition law cases). Discovery can extend to all relevant documents that are within a party’s “possession, custody or power.” Documents that are privileged (whether on the grounds of legal privilege, without prejudice privilege or public interest immunity) must be discovered, but are not available for inspection by the other parties to the proceedings.
Where documents contain confidential information, the court can make orders to protect the confidentiality of that information (for instance, restricting disclosure to external legal counsel on provision of a confidential undertaking).
Parties can also seek documents from third parties by issuing a subpoena for production. As with discovery, documents that are privileged must be produced to the court in response to the subpoena, but will not be available for inspection by the parties to the proceedings.
In terms of the ability of parties to civil proceedings to obtain access to ACCC documents, specific provisions were introduced to the CCA in July 2009, which are designed to protect what is known as “protected cartel information” from disclosure. Protected cartel information is information given to the ACCC in confidence that relates to a breach or possible breach of the prohibitions on cartel conduct. Section 157B provides that the ACCC is not required to produce protected cartel information to the court, except with the leave of the court. In determining whether or not to grant leave, the court must have regard to a range of matters, namely: (i) the fact that the information was given to the ACCC in confidence; (ii) the need to avoid disruption to national and international law enforcement; (iii) the fact that disclosure may discourage informants from giving protected cartel information in the future; (iv) the protection of the safety of the informant and persons associated with them; and (v) the interests of the administration of justice. Section 157C provides that the commission is not required to produce protected cartel information to a person, but can do so after having regard to the same factors that the court must have regard to under Section 157B.
Applicants in private proceedings have, however, been able to obtain access witness statements and documents relied upon by the ACCC in penalty proceedings it has brought in respect of the same cartel conduct.13
Documents that are obtained in the course of court proceedings, such as by way of discovery or subpoena, are subject to an implied undertaking that such documents may only be used for the purposes of those proceedings (unless such documents are tendered or read in open court).
An application can be brought in the Federal Court for pre-action disclosure, known as “preliminary discovery.” Preliminary discovery can be sought to enable a prospective applicant to obtain information in order to decide whether to commence proceedings against a particular defendant where:
i) there is reasonable cause to believe that the applicant has or may have the right to obtain relief from a person whose description has been ascertained;
ii) after making all reasonable inquiries, the applicant has insufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and
iii) there is reasonable cause to believe that that person has had or is likely to have had possession of any document relating to the question of whether the applicant has the right to obtain the relief, and that inspection of the document by the applicant would assist in making the decision.14
Average length of time from issue of claim to judgment in Australia
The length of time from commencement of proceedings to judgment varies significantly depending on the complexity of the proceedings and the extent of interlocutory issues. Competition law proceedings, given their nature, tend to be complex. Accordingly it usually takes a significant period of time to obtain a final judgment. Consistent with this, to date most private competition law enforcement matters have taken a number of years. By way of illustration, cartel class actions have taken four years or more from commencement to finalization of the proceedings (even though those cases have settled prior to hearing).
Average cost from issue of claim to judgment in Australia
The costs of proceedings vary significantly and will be influenced by: (i) the extent of the matters in dispute and the complexity of those matters; (ii) the extent of discovery; (iii) the evidence required (including expert evidence); (iv) the extent of interlocutory disputes; and (v) the length of the hearing. Given the inherent complexity of competition law proceedings, such proceedings can cost AUD1 million or substantially more.15
In Australia, the usual rule is that “costs follow the event.” This means that the successful party in proceedings will usually be entitled to obtain an order that the unsuccessful party pay their costs on what is known as a “party-party” basis. In practice, such orders do not compensate a party for their actual costs but only a portion of those costs (usually around 50% to 70% of actual costs).
In certain circumstances, costs may be awarded to a party on an indemnity basis. In particular, a party can seek to protect its position on costs through making a genuine attempt to reach a compromise in the proceedings. This can be done by either an “Offer of Compromise,” under the Federal Court Rules, or what is known as a “Calderbank Offer.” Under the Federal Court Rules, if a party makes an Offer of Compromise and it is rejected and the party making the offer obtains a more favorable result than the offer made, the court will award costs in favor of the offeror at a higher rate than would ordinarily be received by the offeror had they not made the offer from the date the offer is rejected. 16 There is a similar result for a Calderbank Offer. However, the requirements for a Calderbank Offer are less stringent and the court has discretion as to whether or not it awards indemnity costs for a rejected offer.
Third party litigation funding is allowed in Australia. The position on litigation funding was clarified by the High Court’s decision in Campbells Cash and Carry Pty Limited v Fostif Pty Ltd 17 , where it was held that it was not an abuse of process or contrary to public policy for proceedings to be funded and run by a litigation funder. While litigation funders in Australia have, for the most part, funded securities class actions, the recent class action proceedings brought against a number of international air carriers in relation to the global air cargo cartel was funded by a professional litigation funder. 18 Litigation funders will usually enter into funding arrangements pursuant to which they receive a certain percentage of the damages awarded in return for funding the cost of the proceedings.
Under Australian law, lawyers are permitted to enter into conditional fee agreements pursuant to which all or some of the fees and disbursements are payable in the event of a successful outcome to the proceedings. In some jurisdictions, lawyers are also permitted to charge a success or uplift fee (up to a certain percentage of the actual legal costs). Lawyers are not however permitted to enter into contingency arrangements with clients pursuant to which they are entitled to a percentage of the damages awarded.
Alternative methods of dispute resolution
Alternative dispute resolution, including arbitration, expert determination and mediation, is well established in Australia. In private competition law proceedings, the most common form of alternative dispute resolution is mediation. While parties to proceedings will often voluntarily participate in mediation, the Federal Court has the power to order parties to attend mediation, with or without their consent.19
Parties can agree to refer disputes under the CCA to arbitration proceedings. However, arbitration proceedings are not a common form of dispute resolution in competition law cases in Australia.
Availability of damages and quantification
The Federal Court can make an award of damages to compensate an applicant for loss or damage suffered by conduct of other parties in breach of the CCA. Damages under the CCA are compensatory in nature and proof of actual loss is required before an applicant can recover damages.
The quantum of damages that an applicant can recover under the CCA is “the amount of” the loss or damage they have suffered by the conduct in contravention of the CCA. This means that an applicant would not be able to recover any loss or damage that they passed on to a downstream purchaser. The usual approach to determining the measure of damages under Section 82 of the CCA is to compare the position that the applicant is in with the position that they would have been in had the contravention not occurred.
In addition to damages, an applicant is also entitled to interest for the period from the date on which the cause of action arose to the date on which judgment is entered. 20 The rate of interest usually applied is the cash rate published by the Reserve Bank of Australia plus 4%. 21
Punitive and exemplary damages
In Australia, exemplary and punitive damages are not available for breaches of the CCA. This is because Sections 82 and 87 of the CCA are compensatory in nature.22
Availability of interim or final injunctions in respect of an alleged competition law infringement
Under Section 80 of the CCA, the Federal Court may grant an injunction where a person has engaged (or proposes to engage) in conduct that constitutes or would constitute a contravention of the CCA. An application for an injunction may be made by any person, except for merger matters where only the ACCC may apply for an injunction.
An injunction can be sought on an interlocutory or interim basis, as well as on a final basis. Before the court will grant an interlocutory injunction it must be satisfied that there is a serious question to be tried and that the balance of convenience favors granting the injunction. Where an interlocutory injunction is granted, the party seeking the injunction will be required to give the “usual undertaking as to damages.” This is an undertaking by the applicant that it will pay such compensation, as the court may consider just, to any person (whether a party or not) adversely affected by the operation of the interlocutory injunction.
There are no limitation periods under Section 80. Delay, however, is a factor that the court will take into account in exercising its discretion to grant an injunction.
There has been a slow growth in private competition law litigation in Australia over the past decade. A number of significant cartel class action proceedings have been instituted, and most (but not all) cases were brought as follow-on proceedings to ACCC enforcement action. As these cases have proven to be very costly and time-consuming for the applicant’s lawyers, it is not expected that there will be any major increase in the number of cases brought. Further, to date, nearly all private competition law proceedings have settled well before the final hearing. This means that there is very little judicial guidance on many key issues in private competition law litigation, such as the quantification of damages or the ability to bring contribution claims against other participants in the anti-competitive conduct.
1 CCA, Sections 80, 82 and 87.
2 CCA, Section 75B.
3 CCA, Section 5.
4 CCA, Section 5(3), (4).
5 Wardley Australia Ltd v Western Australia  175 CLR 514.
6 Section 87 allows the court to make orders as it thinks fit to compensate a person for loss or damage suffered by reason of another party’s contravention of the CCA. This can include an award of damages, as well as other orders such as declaring a contract void, amending a contract, etc.
7 Judiciary Act 1903 (Cth), Section 35A.
8 FCA, Section 33C.
9 Evidence Act 1995 (Cth), Section 140.
10 See ACCC v ABB Transmission and Distribution Ltd  190 ALR 169 at 183–184.
11 Federal Court Rules, O15 r 1.
12 Federal Court of Australia, Practice Note CM 5 Discovery, August 1, 2011.
13 See for instance ACCC v Cadbury Schweppes Pty Ltd  FCACF 32.
14 Federal Court Rules, O15A r 6.
15 In two recent cases, the applicant’s solicitors received payment of AUD25 million and AUD13 million respectively in legal fees as part of the settlement of the proceedings.
16 Federal Court Rules, O23.
17 Campbells Cash and Carry Pty Limited v Fostif Pty Ltd  229 CLR 386.
18 Campbells Cash and Carry Pty Limited v Fostif Pty Ltd  229 CLR 386.
19 FCA, Section 53A.
20 FCA, Section 51A.
21 Federal Court of Australia, Practice Note CM 16, Pre-judgment interest, August 1, 2011.
22 Musca v Astle Corp Pty Ltd  80 ALR 251, 262.