Competition Litigation 2012 - Arnold Bloch Leibler

Arnold Bloch LeiblerAustraliaAustralia1.4 Are there specialist courts in Australia to whichcompetition law cases are assigned?The Federal Court of Australia (“Federal Court”) has jurisdictionto hear all matters arising under Part IV of the Act (section 86(1))and under the Competition Code (section 150D). There is a panelof judges (currently numbering 11) who hear competition lawmatters. The rules governing procedure in the Federal Court (the“Federal Court Rules”) were revised in 2011.An accused being criminally prosecuted for cartel conduct has aconstitutional right to a jury trial (Australian Constitution, section 80).The Federal Magistrates Court (a lower court) may hear misuse ofmarket power cases (section 86(1A)) but cannot award damagesgreater than A$750,000 (section 86AA). As this jurisdiction isseverely limited, proceedings in the Federal Magistrates Court arenot considered further in this chapter.The Australian Competition Tribunal (“Tribunal”) is a specialisttribunal. It can authorise a proposed acquisition of shares or assetsthat would otherwise breach section 50 (section 95AT) if theacquisition would result in a public benefit such that the acquisitionshould be allowed (section 95AZH). The Tribunal can also reviewthe ACCC’s decisions whether to authorise anticompetitive conduct(see question 5.1).same or similar circumstances and give rise to a substantialcommon issue of law or fact (section 33C). One person maycommence a representative proceeding on behalf of others – evenwithout obtaining their consent (section 33E) – but they have a rightto opt-out (section 33J).1.6 What jurisdictional factors will determine whether a courtis entitled to take on a competition law claim?Part IV of the Act applies to conduct that occurs within Australia. Italso applies to conduct that occurs outside Australia committed bya body corporate incorporated or carrying on business in Australia,or by an Australian citizen or resident (section 5(1)).Further, there are specific provisions concerning misuse of marketpower in a “trans-Tasman” (Australia and/or New Zealand) market(section 46A) and mergers and acquisitions that occur outsideAustralia, but affect competition in Australia (section 50A).The prohibitions on exclusive dealing (including third line forcing)and resale price maintenance also extend to conduct that occursoutside Australia in relation to the supply of goods or serviceswithin Australia (section 5(2)).See further question 1.4 regarding the jurisdiction of the FederalCourt and the Federal Magistrates Court.161.5 Who has standing to bring an action for breach ofcompetition law and what are the available mechanismsfor multiple claimants? For instance, is there a possibilityof collective claims, class actions, actions byrepresentative bodies or any other form of public interestlitigation?Standing depends on the particular penalties or remedies beingsought:(a) Criminal prosecutions for cartel conduct are carried out bythe Commonwealth Director of Public Prosecutions (“DPP”)in conjunction with the ACCC.(b) Only the ACCC can seek a pecuniary penalty for civilcontraventions (section 76).(c) The ACCC or any person may apply for an injunction(section 80), except only the ACCC can do so to restrain ananticompetitive merger or acquisition (section 80(1A)).(d) The ACCC or any other person may apply for a divestitureorder in respect of an anticompetitive merger or acquisition(section 81).(e) Damages can be claimed by any person who suffered loss ordamage as a result of the breach (section 82).(f) The ACCC and/or the DPP can apply for:(i) a “non-punitive order” (section 86C);(ii) an “adverse publicity order” (section 86D); and/or(iii) an order disqualifying a person from managingcorporations (section 86E).(g) A wide range of compensation orders (under section 87) mayalso be sought:(i) by a person who suffers (or is likely to suffer) loss ordamage;(ii) by the ACCC on behalf of one or more such persons(with their prior written consent); or(iii) in any proceeding for a remedy under Part VI.These remedies are explained in question 3.1.Class actions (officially, “representative proceedings”) may bebrought under Part IVA of the Federal Court of Australia Act 1976(Cth) (“Federal Court Act”). This requires at least seven personswho have claims that are against the same person, arise out of the1.7 Is the judicial process adversarial or inquisitorial?The judicial process is adversarial but the Federal Court has broadcase management powers (Federal Court Act, section 37P).2 Interim Remedies2.1 Are interim remedies available in competition law cases?Yes, see question 2.2.2.2 What interim remedies are available and under whatconditions will a court grant them?The court can grant an interim injunction (section 80(2)), whichmay be prohibitory (prohibiting something from being done) or,less commonly, mandatory (compelling something to be done).To obtain an interim injunction, the plaintiff’s claim must raise aserious question to be tried or be sufficiently likely to succeed (ABCv O’Neill (2006) 227 CLR 57). The court will consider whether the“balance of convenience” favours preserving the status quo. Thecourt may refuse to grant an injunction if the plaintiff delays inmaking the application.A plaintiff (other than the ACCC, the relevant Minister and theDPP: section 80) must also give the “usual undertaking as todamages”. This requires the plaintiff to compensate any partyadversely affected by the interim injunction. The amount ofcompensation is what the court considers just.3 Final Remedies3.1 Please identify the final remedies which may be availableand describe in each case the tests which a court willapply in deciding whether to grant such a remedy.A wide range of final remedies is available under the Act:WWW.ICLG.CO.UKICLG TO: COMPETITION LITIGATION 2012© Published and reproduced with kind permission by Global Legal Group Ltd, London