General introduction to the legislative framework for private antitrust enforcement
The CCA, together with the Federal Court Act, provides the legislative framework for private antitrust litigation in Australia. Part IV of the CCA prohibits a broad range of anticompetitive conduct, including cartel conduct, exclusive dealing and concerted practices, misuse of market power, and anticompetitive mergers and acquisitions. Any person who has suffered loss or damage, or is likely to suffer loss or damage, as a result of a breach of the prohibitions on anticompetitive conduct under the CCA can bring proceedings to recover that loss or damage under Section 82 of the CCA, or seek compensation or other orders to limit the loss or damage suffered or likely to be suffered as a result of the conduct: for example, an order declaring the whole or part of a contract to be void. Private litigants can also seek injunctions in relation to a breach or proposed breach of the prohibitions on anticompetitive conduct, other than the prohibition on anticompetitive mergers and acquisitions (which can only be sought by the ACCC). An action for damages or compensation or other orders may be commenced at any time within six years after the day on which the cause of action that relates to the conduct accrued.
Under Section 86(1) of the CCA, the Federal Court of Australia has jurisdiction to hear all civil proceedings arising under the CCA. Under Section 163 of the CCA, the Federal Court also has jurisdiction to hear prosecutions for criminal offences under the CCA. The Federal Circuit Court has jurisdiction to hear misuse of market power cases and matters arising under industry codes registered under the CCA, but cannot make an award for damages greater than A$750,000 under Section 86AA of the CCA. Private enforcement proceedings commenced or heard in the federal courts are subject to the Federal Court Rules 2011 (Federal Court Rules). The CCA also confers limited jurisdiction for private antitrust enforcement on the several courts of Australian states, although in practice claims under the CCA are more commonly pursued in the Federal Court.
While a framework exists for private enforcement actions, including by making use of provisions in the CCA that allow for follow-on proceedings (discussed further in Section X), such private enforcement actions are not common in Australia. This is likely due to the difficulties in assessing damage suffered as a result of anticompetitive conduct, the high cost of conducting proceedings in the Federal Court and potentially a lack of effective compensation mechanisms such as treble damages, which in other jurisdictions are perceived to create greater incentives for private litigation.