Epic Games, Inc v Apple Inc (Case Management) - [2022] FCA 341

FEDERAL COURT OF AUSTRALIA
Epic Games, Inc v Apple Inc (Case Management) [2022] FCA 341

File numbers: NSD 1236 of 2020
NSD 190 of 2021

Judgment of: PERRAM J

Date of judgment: 4 April 2022

Catchwords: PRACTICE AND PROCEDURE – where two matters likely have overlapping issues – where matters have common Applicant – when matters are to be listed for trial whether matters are to be heard together or sequentially

Legislation: Competition and Consumer Act 2010 (Cth) Pt IV, Sch 2 s 21

Cases cited: GetSwift Limited v Webb [2021] FCAFC 26; 283 FCR 328

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Economic Regulator, Competition and Access

Number of paragraphs: 31

Date of hearing: 24 March 2022

Counsel for the Applicants: Mr N J Young QC with Mr M P Costello

Solicitor for the Applicants: Allens

Counsel for the Respondents (NSD 1236 of 2020): Mr S J Free SC with Ms Z Hillman

Solicitor for the Respondents (NSD 1236 of 2020): Clayton Utz

Counsel for the Respondents (NSD 190 of 2021): Mr C A Moore SC with Mr R A Yezerski

Solicitor for the Respondents (NSD 190 of 2021): Corrs Chambers Westgarth

ORDERS

NSD 1236 of 2020

BETWEEN:
EPIC GAMES, INC

First Applicant

EPIC GAMES INTERNATIONAL S.À R.L.

Second Applicant

AND:
APPLE INC

First Respondent

APPLE PTY LIMITED

Second Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:
1.Order 10 of the orders dated 20 August 2021, setting the matter down for trial in November 2022, be vacated.
2.The matter be listed for trial in some fashion during the period of 18 weeks commencing on 4 March 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS

NSD 190 of 2021

BETWEEN:
EPIC GAMES, INC

First Applicant

EPIC GAMES INTERNATIONAL S.À R.L.

Second Applicant

AND:
GOOGLE LLC

First Respondent

GOOGLE ASIA PACIFIC PTE. LTD.

Second Respondent

GOOGLE PAYMENT AUSTRALIA PTY LTD

Third Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:
1.The matter be listed for trial in some fashion during the period of 18 weeks commencing on 4 March 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
PERRAM J:

There are currently two separate cases pending in the Court’s docket: Epic Games, Inc v Apple Inc (NSD 1236 of 2020) and Epic Games, Inc v Google LLC (NSD 190 of 2021). Both cases arise out of the removal of Epic Games, Inc’s (‘Epic’) game, Fortnite, from the iOS and Android platforms in August 2020. In both cases, Epic alleges that the manner in which Apple Inc (‘Apple’) and Google LLC (‘Google’) (together ‘the Respondents’) have conducted their respective platforms is, in various ways, a contravention of Pt IV of the Competition and Consumer Act 2010 (Cth) (‘CCA’). It is also alleged that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FCA 341
Decision Date: 4 April 2022

CaseChat Overview and Summary

The matter before the Court involved Epic Games, Inc, a developer of video games, and Apple Inc, a technology company, in relation to issues concerning the App Store. The dispute was primarily focused on the procedures and processes of the Court in managing two related matters that had overlapping issues. Both cases shared a common applicant, Epic Games, and the Court was required to determine whether the matters should be heard together or sequentially. This decision was crucial for the efficiency of the judicial process and the resolution of the underlying disputes.

The legal issues that the Court needed to address included the appropriate way to manage the two related matters, considering their shared applicant and overlapping issues. The Court had to determine whether the matters should be heard together to avoid duplication and ensure a coherent resolution of the issues or whether they should be heard separately to allow for a more focused examination of each case's unique aspects. The Court also needed to consider the potential impact of its decision on the efficiency of the judicial process and the rights of the parties involved.

In delivering its decision, the Court considered the principles of judicial economy and the need to avoid unnecessary duplication of efforts. The Court noted that both matters involved common issues and a common applicant, which suggested that they could be heard together. However, the Court also recognised the importance of allowing each matter to be fully and fairly examined. After careful consideration, the Court decided that the matters should be heard together but within a structured framework that ensured each matter received appropriate attention. The Court ordered that the matter be listed for trial during a period of 18 weeks commencing on 4 March 2024, providing a clear timeline for the resolution of the issues.

The Court's decision was aimed at achieving a balance between the need for judicial efficiency and the requirement to ensure that each matter was adequately addressed. By setting a specific timeline for the trial, the Court provided clarity and certainty for the parties involved, facilitating the resolution of the underlying disputes. The Court's approach demonstrated a commitment to managing related matters in a way that was both fair and efficient, while also respecting the rights of all parties.

Orders

Orders of the court

1. The matter be listed for trial in some fashion during the period of 18 weeks commencing on 4 March 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File numbers:	NSD 1236 of 2020 NSD 190 of 2021
Judgment of:	PERRAM J
Date of judgment:	4 April 2022
Catchwords:	PRACTICE AND PROCEDURE – where two matters likely have overlapping issues – where matters have common Applicant – when matters are to be listed for trial whether matters are to be heard together or sequentially
Legislation:	Competition and Consumer Act 2010 (Cth) Pt IV, Sch 2 s 21
Cases cited:	GetSwift Limited v Webb [2021] FCAFC 26; 283 FCR 328
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Economic Regulator, Competition and Access
Number of paragraphs:	31
Date of hearing:	24 March 2022
Counsel for the Applicants:	Mr N J Young QC with Mr M P Costello
Solicitor for the Applicants:	Allens
Counsel for the Respondents (NSD 1236 of 2020):	Mr S J Free SC with Ms Z Hillman
Solicitor for the Respondents (NSD 1236 of 2020):	Clayton Utz
Counsel for the Respondents (NSD 190 of 2021):	Mr C A Moore SC with Mr R A Yezerski
Solicitor for the Respondents (NSD 190 of 2021):	Corrs Chambers Westgarth

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	4 APRIL 2022