FEDERAL COURT OF AUSTRALIA
Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338
File number: NSD 1236 of 2020 Judgment of: PERRAM J Date of judgment: 9 April 2021 Catchwords: PRIVATE INTERNATIONAL LAW – application for permanent stay of proceedings alleging contraventions of Competition and Consumer Act 2010 (Cth) (‘CCA’) Pt IV, Australian Consumer Law (‘ACL’) s 21 – where exclusive jurisdiction clause requires litigation relating to app developer agreement to occur in Northern District of California – where First Applicant has commenced proceedings against First Respondent in Northern District of California alleging contraventions of United States and Californian competition law – whether Australian proceedings ‘relate to’ agreement
PRIVATE INTERNATIONAL LAW – discretionary non-exercise of jurisdiction – whether ‘strong reasons’ adduced against grant of stay, considering Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 – whether CCA Pt IV, ACL s 21 mandatory laws of the forum – where parties agree courts in Northern District of California have jurisdiction to hear claims under CCA and ACL – whether court in Northern District of California would decline to exercise jurisdiction on discretionary grounds – whether Akai places onus on party arguing for stay to prove case will be heard by foreign court
COMPETITION – where allegation that CCA Pt IV is contravened by requirements that app developers only distribute apps through Respondents’ app store and purchases of in-app content use only Respondent’s payment processing system – whether CCA Pt IV cases should be determined by foreign courts
CONSUMER LAW – where exclusive jurisdiction clause in standard form contract between First Respondent and app developers – whether clause contravenes ACL s 21
Legislation: Carriage of Goods by Sea Act 1991 (Cth) s 11(2)
Competition and Consumer Act 2010 (Cth) Pt IV, ss 2, 5, 45, 46, 47, 80, 83, 86, Sch 2 ss 21, 22(1), 23
Insurance Contracts Act 1984 (Cth)
Sherman Act 15 USC §§1-2
Cartwright Act Cal Bus & Prof Code §§16700 et seq
Unfair Competition Law Cal Bus & Prof Code §§17200 et seq
Cases cited: Armacel Pty Limited v Smurfit Stone Container Corporation [2008] FCA 592; 248 ALR 573
Australian Competition and Consumer Commission v Valve Corporation [2016] FCA 196; 337 ALR 647
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; 99 NSWLR 419
Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2007] FCA 881
Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45
Commonwealth Bank of Australia v White [1999] VSC 262; 2 VR 681
ContentGuard Holdings, Inc. v Amazon.com, Inc. 2015 WL 1885256 (ED Tex 2015)
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- Case
- [2021] FCA 338
- Decision Date
CaseChat Overview and Summary
The main legal issues were whether the Australian proceedings related to the developer agreement and whether there were strong reasons to exercise the court's discretion not to stay the proceedings. The court considered whether the Competition and Consumer Act and Australian Consumer Law were mandatory laws of the forum that required the Australian court to hear the claims. The court also considered whether it was likely the court in the Northern District of California would decline to exercise jurisdiction on discretionary grounds.
The court found that the Australian proceedings did relate to the developer agreement and that there were strong reasons to exercise the court's discretion to stay the proceedings. The exclusive jurisdiction clause was not contrary to the Australian Consumer Law. It was likely the court in the Northern District of California would exercise jurisdiction over the claims. The onus was on Epic to prove a case for the non-exercise of jurisdiction, following Akai Pty Ltd v People's Insurance Co Ltd. The court granted a temporary stay of the proceedings for 3 months to allow Epic to sue Apple in the Northern District of California. If Epic did not do so, the stay would become permanent.
Orders
Orders of the court
1. The proceedings be temporarily stayed for a period of 3 months from the date of these orders.
2. If at the end of the period referred to in Order 1, the First Applicant has not commenced a suit in a court in the Northern District of California alleging contraventions of Part IV of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and/or s 21 of the Australian Consumer Law, being Sch 2 to the CCA, the proceedings be permanently stayed.
3. If the First Applicant commences a suit of the kind referred to in Order 2 within the period referred to in Order 1, the stay of these proceedings be continued but with liberty to apply in the event that a court in the Northern District of California declines to determine the allegations referred to in Order 2.
4. The Applicants pay 95% of the Respondents’ costs of the Interlocutory Application filed 22 December 2020 as taxed, assessed or otherwise agreed.
5. The costs of these proceedings otherwise be reserved with liberty to the Respondents to apply.
6. The Applicants be granted leave to appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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