The Australian Competition and Consumer Commission (ACCC) has sought leave to appear at the hearing of Epic Games’ appeal to the Full Federal Court against an earlier Court decision to stay Epic’s proceedings against Apple.
The ACCC seeks the Court’s leave to appear as an amicus curiae (‘friend of the Court’), or to intervene as a non-party, to make submissions to the Full Court about the public policy in favour of disputes involving Australia’s competition laws being heard and determined by Australian courts.
Epic instituted proceedings in the Federal Court of Australia against Apple in November 2020, making allegations that Apple had engaged in anti-competitive conduct in breach of the Competition and Consumer Act (CCA) in relation to the App Store.
Apple sought a stay of these proceedings on the grounds that the commercial agreement between Apple and Epic requires all disputes between the parties to be determined in courts in the Northern District of California in the United States.
On April 9, 2021, Justice Perram granted the stay of the proceedings sought by Apple, on the basis that he did not consider Epic had shown there were strong reasons not to grant the stay. In reaching this conclusion, he indicated that he was troubled by the outcome, which would result in Epic’s claims under Australian competition law being determined by a foreign court.
Epic has appealed from that decision, and an expedited hearing before the Full Federal Court has been fixed for June 9, 2021.
“The ACCC has taken the unusual step of seeking leave to appear in this appeal because the stay application raises significant public policy issues about which, as the statutory agency responsible for administering Australia’s competition law, we believe we can be of assistance to the Court,” ACCC Chair Rod Sims said.
“This is a case filed in an Australian Court involving Australian consumers and raising significant issues under Australia’s competition laws. We believe it is in the public interest for significant competition law cases such as this case to be determined by Australian courts, given the outcome of such cases can have significant implications for the broader Australian economy.”
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