Federal Court of Australia

Anthony v Apple Inc (No 2) [2026] FCA 1553

ORDERS

THE COURT ORDERS THAT:

1.    The common questions be answered in the form set out in Annexure 1 to these orders and, pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth), the answers be binding on the group members of this proceeding, save for those group members who have opted out of the proceeding pursuant to s 33J of the Act.

2.    The costs of the proceeding to date be reserved.

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

Annexure 1

Answers to Common Questions

Markets

1.    Between 6 November 2017 and 20 June 2022, was there a market in Australia for the supply of services for the distribution of iOS apps to iOS device users (iOS app distribution services market) within the meaning of s 4E of the Competition and Consumer Act 2010 (Cth) (CCA)?

Answer: Yes

2.    Between 6 November 2017 and 20 June 2022, was there a market in Australia for the supply of services to app developers relating to the payment for digital content within iOS apps (iOS in-app payment solutions market) within the meaning of s 4E of the CCA?

Answer: Yes

Market power

3.    Between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent have a substantial degree of power in the iOS app distribution services market?

Answer (first respondent): Yes

Answer (second respondent): Unnecessary to answer, as the second respondent did not contravene s 46 of the CCA.

4.    Between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent have a substantial degree of power in the iOS in-app payment solutions market?

Answer (first respondent): Yes

Answer (second respondent): Unnecessary to answer, as the second respondent did not contravene s 46 of the CCA.

Purpose, effect or likely effect of substantial lessening of competition

5.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct (described in Question 7) that had the purpose, and that had or was likely to have the effect, of substantially lessening competition in the iOS app distribution services market by:

(i)    requiring that app developers who wished to distribute iOS apps to iOS device users do so only via the App Store;

(ii)    prohibiting the distribution of iOS apps to iOS devices by any means other than the App Store, save for certain trivial exceptions expressly permitted;

(iii)    preventing or hindering app developers from developing or updating iOS apps for distribution through distribution channels other than the App Store;

(iv)    preventing or hindering iOS device users from downloading, installing or updating iOS apps, including alternative app stores, from websites or alternative app stores; and

(v)    imposing OS-level restrictions that prevented iOS apps from running on an iOS device unless obtained via the App Store or pre-installed by the first respondent?

Answer (first respondent): Yes

Answer (second respondent): No

6.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the iOS app distribution services market by prohibiting rival app stores within the App Store?

Answer: No

7.    Between 6 November 2017 and 20 June 2022, did the conduct referred to in Question 5 comprise requiring app developers that wished to distribute iOS apps to enter into the developer program licence agreement (DPLA), the terms of which were non-negotiable, and to comply with the App Store Review Guidelines that imposed the following terms upon those app developers, and enforcing those terms against developers, including the second applicant and iOS app developer group members:

(i)    iOS apps may be distributed only if selected by the first respondent in its sole discretion for distribution via the App Store, subject to trivial exceptions;

(ii)    an iOS app may not provide, unlock or enable additional features or functionality through distribution mechanisms other than the App Store, Custom App Distribution or TestFlight;

(iii)    app developers must not distribute their iOS apps to third parties via distribution methods other than those expressly permitted by the first respondent;

(iv)    interpreted code downloaded to an iOS app may not create a store or storefront for other code or iOS apps;

(v)    iOS apps may only use Application Programming Interfaces (APIs) which are contained in software provided to app developers by the first respondent in the manner prescribed by the first respondent and must not use or call any private APIs;

(vi)    app developers must not allow users to access content, subscriptions or features they purchased from the developer’s own website or another app distribution channel without also making it available as an in-app purchase within their iOS apps distributed via the App Store;

(vii)    app developers seeking to distribute iOS apps must appoint the first and second respondents as their agent for the marketing and delivery of the developer’s app to iOS users located in Australia; and

(viii) app developers are prohibited from issuing any refunds to users of their iOS apps?

Answer: Yes

8.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct (described in Question 10) that had or was likely to have the effect of substantially lessening competition in the iOS in-app payment solutions market by preventing or prohibiting app developers and users from using payment methods other than the first respondent’s payment solution (IAP) for purchasing digital content for use in-app, by requiring app developers to use IAP for all in-app purchases of digital content in iOS apps and by prohibiting them from using an alternative payment method within that iOS app, and by prohibiting app developers from directing users from within iOS apps to alternative payment methods for purchases of digital content?

Answer (first respondent): Yes

Answer (second respondent): No

9.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct described in Question 10 that had the purpose of substantially lessening competition in the iOS in-app payment solutions market by preventing or prohibiting app developers and users from using payment methods other than IAP for purchasing digital content for use in-app, by requiring app developers to use IAP for all in-app purchases of digital content in iOS apps and prohibiting them from using an alternative payment method within that iOS app, and by prohibiting app developers from directing users from within iOS apps to alternative payment methods for purchases of digital content?

Answer: No

10.    Between 6 November 2017 and 20 June 2022, did the conduct referred to in Questions 8 and 9 comprise requiring app developers that wish to distribute iOS apps to enter into the DPLA and comply with the App Store Review Guidelines that impose the following terms upon those app developers, and enforcing those terms against developers:

(i)    if developers want to unlock features or functionality within their iOS app, they:

A.    must use IAP; and

B.    must not use their own mechanisms to unlock content or functionality;

(ii)    iOS apps and their metadata may not include buttons, external links, or other calls to action that direct customers to purchasing mechanisms other than IAP?

Answer: Yes

Alleged contraventions

Section 46

11.    By reference to the answers to Questions 1 to 10 above, between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent engage in conduct in contravention of s 46(1) of the CCA?

Answer (first respondent): Yes

Answer (second respondent): No

12.    Was the second respondent involved in the first respondent’s contraventions of s 46(1) of the CCA within the meaning of s 75B of the CCA?

Answer: No

Section 47

13.    Between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent engage in the practice of exclusive dealing in contravention of s 47(1) of the CCA by imposing a condition that iOS app developers would not obtain payment solutions for facilitating payments for in-app purchases of digital content for any person other than the first respondent?

Answer: No

14.    Was the second respondent involved in the first respondent’s contraventions of s 47(1) of the CCA within the meaning of s 75B of the CCA?

Answer: No, as the first respondent did not contravene s 47(1).

Section 45

15.    Between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent engage in conduct in contravention of s 45 of the CCA by making or giving effect to the iOS restrictive terms in contracts with iOS app developers?

Answer: No

16.    Was the second respondent involved in the first respondent’s contraventions of s 45 of the CCA within the meaning of s 75B of the CCA?

Answer: No, as the first respondent did not contravene s 45

Section 21

17.    Between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent engage in conduct in contravention of s 21 of the Australian Consumer Law by requiring and enforcing the iOS restrictive terms?

Answer: No

18.    Was the second respondent involved in the first respondent’s contraventions of s 21 of the Australian Consumer Law within the meaning of s 75B of the CCA?

Answer: No, as the first respondent did not contravene s 21.

ORDERS

THE COURT ORDERS THAT:

1.    The common questions be answered in the form set out in Annexure 1 to these orders and, pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth), the answers be binding on the group members of this proceeding, save for those group members who have opted out of the proceeding pursuant to s 33J of the Act.

3.    Subject to further order, for the purposes of rr 35.13(b) and 36.03(b) of the Federal Court Rules 2011 (Cth), the period for the filing and service of any application for leave to appeal or notice of appeal from order 1 be extended such that it ends at 4.00 pm on the day which is 28 days after the later of the Court answering the common questions and making s 33ZB orders in proceeding VID 341 of 2022 or the Court making orders in the nature of final relief in proceeding NSD 1236 of 2020, and if that day falls on a weekend or public holiday then at 4.00 pm on the next business day.

4.    Costs reserved.

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

Annexure 1

Answers to Common Questions

Markets

1.    Between 6 November 2017 and 20 June 2022, was there a market in Australia for the supply of licenses for mobile operating systems (mobile OS licensing market) within the meaning of s 4E of the Competition and Consumer Act 2010 (Cth) (CCA)?

Answer: Yes

2.    Between 6 November 2017 and 20 June 2022, was there a market in Australia for the supply of services for the distribution of Android apps to Android device users (Android mobile app distribution market) within the meaning of s 4E of the CCA?

Answer: Yes

3.    Between 6 November 2017 and 20 June 2022, was there a market in Australia for the supply of services to app developers for the facilitation of payments for the purchase of digital content within Android Apps (Android in-app payment solutions market) within the meaning of s 4E of the CCA?

Answer: Yes

Market power

4.    Between 6 November 2017 and 20 June 2022, did the first, second and third respondent have a substantial degree of power in the mobile OS licensing market?

Answer (first and second respondents): Yes

Answer (third respondent): Unnecessary to answer as the third respondent did not contravene s 46(1) of the CCA.

5.    Between 6 November 2017 and 20 June 2022, did the first, second and third respondent have a substantial degree of power in the Android mobile app distribution market?

Answer (first and second respondents): Yes

Answer (third respondent): Unnecessary to answer as the third respondent did not contravene s 46(1) of the CCA.

6.    Between 6 November 2017 and 20 June 2022, did the first, second and third respondent have a substantial degree of power in the Android in-app payment solutions market?

Answer (first and second respondents): Yes

Answer (third respondent): Unnecessary to answer as the third respondent did not contravene s 46(1) of the CCA.

Purpose, effect or likely effect of substantial lessening of competition

7.    Between 6 November 2017 and 20 June 2022, did the first, second or third respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the Android in-app payment solutions market, by:

(i)    from 6 November 2017, requiring app developers that distribute Android apps via the Play Store to use Google Play Billing for in-app purchases of digital content within those Android apps (save, before 20 January 2021, for in-app purchases within non-gaming apps of digital content that might be used outside those apps); and

(ii)    from at least January 2021 in respect of new apps and 30 September 2021 in respect of pre-existing apps, prohibiting developers of Android apps that are distributed via the Play Store from leading users to a payment method other than Google Play Billing for purchases of digital content for use in-app?

Answer (first and second respondents): Yes as to the effect or likely effect, but no as to purpose.

Answer (third respondent): No

8.    Did the conduct referred to in question 7 comprise requiring app developers that wished to distribute Android apps via the Play Store to enter into a Google Developer Distribution Agreement (DDA), and to comply with developer program policies that impose the following contractual terms upon those app developers, and enforcing those terms against app developers:

(i)    all Play Store-distributed Android apps requiring or accepting payment for access to in-app features or services, including any app functionality, digital content or goods, must use Google Play Billing, except in limited circumstances; and

(ii)    Android apps that are required to use Google Play Billing may not lead users to a payment method other than Google Play’s billing system, including by leading users to other payment methods via an app’s listing on Google Play, in-app promotions related to purchasable content, in-app webviews, buttons, links, messaging, advertisements or other calls to action, and in-app user interface flows?

Answer: Yes

9.    From April 2019 to 20 June 2022, did the first, second or third respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the Android mobile app distribution market by preventing or hindering the development or expansion of rival Android app stores by making it impossible for such stores to offer differentiated content from certain major gaming app developers?

Answer (first and second respondents): Yes as to purpose and likely effect, but no as to actual effect.

Answer (third respondent): No

10.    Did the conduct referred to in question 9 comprise ‘Project Hug’, later known as the ‘Games Velocity Program’ (GVP), and the GVP agreements, under which certain major gaming app developers were promised benefits, on condition that those developers undertook to do a combination of some or all of the following:

(i)    release all mobile titles on the Play Store at the same time or before their release on any other mobile distribution channel, including iOS;

(ii)    ensure that the core content, features and functionality of mobile titles available on the Play Store were the same as on comparable platforms and through other mobile distribution channels; and

(iii)    not remove any mobile titles from the Play Store unless required by Google, an applicable law, or as otherwise agreed in writing between the parties?

Answer: Yes

11.    Between 6 March 2020 and 20 June 2022, did the first, second or third respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the Android mobile app distribution market by preventing or hindering the development or expansion of rival Android app stores by making it impossible for such stores to offer differentiated content from certain developers?

Answer (first and second respondents): Yes as to purpose and likely effect, but no as to actual effect.

Answer (third respondent): No

12.    Did the conduct referred to in question 11 comprise the ‘Apps Velocity Program’ (AVP) and the AVP agreements, under which certain Android app developers were promised benefits, on condition that those developers undertook to do the following:

(i)    ensure that designated apps distributed through the Play Store had the same core content and features as any comparable product (being a non-Play Store app or service that is the same as the designated app, or any in-app purchase or subscription product that can be used in the designated app);

(ii)    with the exception of Bumble Holding Limited, ensure that the subscription or purchase price applicable to each designated app on the Play Store was at least as favourable as the subscription and/or purchase price of comparable products or of the same designated app on other mobile app-purchase platforms comparable to the Play Store; and

(iii)    not to remove any mobile titles from the Play Store unless required by Google or an applicable law?

Answer: Yes

13.    From about June 2019 to 20 June 2022, did the first, second or third respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the Android mobile app distribution market by preventing or hindering the pre-installation of app stores other than the Play Store and ensuring that the Play Store remained the predominant supplier of Android app distribution services?

Answer (first and second respondents): Yes as to purpose, but no as to effect or likely effect.

Answer (third respondent): No

14.    Did the conduct referred to in question 13 comprise offering certain original equipment manufacturers (OEMs) financial incentives under ‘Premier-tier revenue sharing agreements’ (‘RSA3s’) and ‘mobile incentive agreements’ (‘MIAs’) on condition that those OEMs configured Android devices such that they:

(i)    did not include or pre-install any service substantially similar to the Play Store, nor any application, service, icon, launcher, over-the-air prompt or functionality that had the primary purpose of providing access to any service substantially similar to the Play Store;

(ii)    did not allow the OEM or any third party to promote, introduce or suggest any service substantially similar to the Play Store to a user; and

(iii)    pre-installed only apps that:

A.    were available on the Play Store;

B.    did not overlap with the features or functionality of the Play Store and other specified GMS apps; and

C.    did not contain privileged install permissions,

except for certain limited exceptions?

Answer: Yes

15.    From 6 November 2017 to 20 June 2022, did the first, second or third respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the Android mobile app distribution market by preventing or hindering the installation of apps from sources other than the Play Store, such conduct comprising granting OEMs a licence to distribute mobile devices with Google Mobile Services pre-installed under a ‘mobile application distribution agreement’ (MADA) on condition that those OEMs configured Android devices with technical restrictions that determined whether a user was attempting to install an app from an unknown source, and if so initiated an ‘unknown source install flow’ comprising warning screens and prompts that the user was required to navigate in order to install the app?

Answer: No

16.    From 6 November 2017 to 20 June 2022, did the first, second or third respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the Android mobile app distribution market by preventing or hindering app developers from distributing alternative Android app stores through the Play Store, such conduct comprising requiring all app developers that wish to distribute Android apps via the Play Store to enter into a DDA, that imposed a contractual term upon those app developers that prohibited distribution of alternative Android app stores through the Play Store (clause 4.5), and enforcing that term against app developers?

Answer: No

Alleged contraventions

17.    By reference to the answers to questions 4 to 14, between 6 November 2017 and 20 June 2022, did the first and second respondents engage in conduct in contravention of s 46(1) of the CCA?

Answer: Yes

18.    By reference to the answers to questions 4 to 14 above, between 6 November 2017 and 20 June 2022, did the third respondent engage in conduct in contravention of s 46(1) of the CCA?

Answer: No

19.    Was the third respondent involved in the first and second respondents’ contraventions of s 46(1) of the CCA within the meaning of s 75B of the CCA?

Answer: No

20.    Between 6 November 2017 and 20 June 2022, did the first, second or third respondent engage in the practice of exclusive dealing in contravention of s 47(1) of the CCA?

Answer: No

21.    Between 6 November 2017 and 20 June 2022, did the first, second or third respondent engage in conduct in contravention of s 45 of the CCA?

Answer: No

22.    Between 6 November 2017 and 20 June 2022, did the first, second or third respondent engage in conduct in contravention of s 21 of the Australian Consumer Law, being schedule 2 to the CCA?

Answer: No

REASONS FOR JUDGMENT

BEACH J:

1    These reasons address the form and content of the parties’ proposed answers to questions and the associated order under s 33ZB of the Federal Court of Australia Act 1976 (Cth) in proceeding VID341/2022 (the Apple class action) and the answers to questions and the associated s 33ZB order that I made on 22 May 2026 in proceeding VID342/2022 (the Google class action) to give effect to my previous liability findings flowing from the earlier joint trial of four proceedings.

2    These reasons are to be read in the light of my earlier judgments being Anthony v Apple Inc; McDonald v Google LLC [2025] FCA 902; (2025) ATPR ¶42–912, Epic Games Inc v Apple Inc [2025] FCA 900; (2025) 189 IPR 1; (2025) ATPR ¶42–910 and Epic Games Inc v Google LLC [2025] FCA 901; (2025) ATPR ¶42–911, and also my reasons delivered today in Epic Games Inc v Apple Inc (No 2) [2026] FCA 1552. My reasons in Epic v Apple (No 2) set out some of my philosophy which underpins the stipulated questions, answers and the s 33ZB order that I will make in the Apple class action. My present reasons also contain the necessary justification for the questions and answers and the s 33ZB order that I have made in the Google class action.

3    I should make two other preliminary points before proceeding further. First, I have tried to achieve to the extent feasible a consistent approach to the semantic formulation and style of the relief at two levels being, first, consistency across the questions, answers and s 33ZB order in the Apple class action and the questions, answers and s 33ZB order in the Google class action and, second, consistency across the questions and answers in the Apple class action and the declarations that I have made in Epic v Apple (No 2) today. As between the questions and answers in the Apple class action and the declarations in Epic v Apple (No 2) there should also be consistency of content. But as between the questions and answers in the Apple class action as compared with the questions and answers in the Google class action, of course the content is different. Second, I have assumed a familiarity with my earlier judgments in drafting these reasons and have also used earlier definitions where appropriate.

4    Now the outstanding disputes as to the proposed common questions and answers in the Apple class action and the Google class action can be categorised as follows. First, there are disputes between the parties relating to various of my liability findings. In the Google class action, the dispute is minor. But in the Apple class action, the dispute is larger. Second, there is a dispute concerning the class applicants’ proposed questions and answers in relation to commission overcharge.

5    Now the purpose of stating common questions and answers is to identify the common issues of fact and law that have been determined at the initial trial. This is necessary because it establishes the boundaries and content of any statutory estoppel arising under s 33ZB and provides the framework for any appeal.

6    Part IVA of the FCA Act addresses the Court’s powers and procedure with respect to representative actions. Relevantly, s 33Z(1) provides that the Court may in determining a matter in a representative proceeding determine an issue of law or fact or make a declaration of liability. Section 33ZB then provides that any judgment given in representative proceedings must describe or otherwise identify the group members who will be affected by it and binds all such persons other than those who have opted out.

7    I had cause recently to discuss s 33ZB in a different context to address a subtle difference in approach concerning third–party releases (see Thomas v Commonwealth Financial Planning Limited (No 2) [2026] FCA 1261 at [46] to [66]). But in the present context, all that is required is to address its plain vanilla operation.

8    First, s 33ZB provides:

A judgment given in a representative proceeding:

(a)    must describe or otherwise identify the group members who will be affected by it; and

(b)    binds all such persons other than any person who has opted out of the proceeding under section 33J.

9    Second, the usual operation of s 33ZB has been described in Timbercorp Finance Pty. Ltd. (in liquidation) v Collins (2016) 259 CLR 212 by the plurality in terms (at [52]):

Part 4A creates its own kind of statutory estoppel. Section 33ZB requires that a judgment in a group proceeding identify the group members affected by it and, subject to a provision not presently relevant, provides that that judgment “binds all persons who are such group members at the time the judgment is given”. In order to understand that to which the group members are bound, it is necessary to read s 33ZB in the context of Pt 4A as a whole and ss 33C(1) and 33H in particular. By that process it will be seen that group members are bound by the determination of the claims giving rise to the common questions.

10    Now the practice of this Court and other state courts has not been to make declarations of right that recite the Court’s findings on issues of fact and law, but rather to record findings of fact and law on common issues in the form of answers to questions pursuant to ss 33Z(1)(a) and (b). These answers then bind the identified parties and group members pursuant to s 33ZB.

11    This is the approach that has been adopted in cases that I have more than a passing familiarity with including Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports 81–692; [2003] VSC 27 at [44] and [1352] per Gillard J; Johnson Tiles Pty. Ltd. v Esso Australia Pty. Ltd. (No 2) [2003] VSC 212 at [42] to [48] per Gillard J; Woodcroft-Brown v Timbercorp Securities Ltd (in liq) (No 2) [2011] VSC 526 at [5] to [32] per Judd J, and see also the orders made following my judgment in TPT Patrol Pty Ltd v Myer Holdings Ltd (2019) 293 FCR 29; (2019) 140 ACSR 38.

12    Let me turn then to the dispute concerning the questions and answers to be made in the Apple class action, putting to one side for the moment the overcharge question.

Liability common questions – Apple class action

13    In the Apple class action, questions 5 to 10 in the class applicants’ proposed orders concern findings of fact and law concerning the purpose, effect or likely effect of Apple’s conduct.

14    It is convenient to set these questions out:

5.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct (described in Question 7) that had the purpose, and that had or was likely to have the effect, of substantially lessening competition in the iOS app distribution services market by:

(i)    requiring that app developers who wished to distribute iOS apps to iOS device users do so only via the App Store;

(ii)    prohibiting the distribution of iOS apps to iOS devices by any means other than the App Store, save for certain trivial exceptions expressly permitted;

(iii)    preventing or hindering app developers from developing or updating iOS apps for distribution through distribution channels other than the App Store;

(iv)    preventing or hindering iOS device users from downloading, installing or updating iOS apps, including alternative app stores, from websites or alternative app stores;

(v)    imposing OS-level restrictions that prevented iOS apps from running on an iOS device unless obtained via the App Store or pre-installed by the first respondent; and

(vi)    prohibiting the pre-installation of third-party apps, including alternative app stores, on iOS devices?

6.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct that had the purpose, effect or likely effect of substantially lessening competition in the iOS app distribution services market by prohibiting rival app stores within the App Store?

7.    Between 6 November 2017 and 20 June 2022, did the conduct referred to in Question 5 comprise requiring app developers that wished to distribute iOS apps to enter into the developer program licence agreement (DPLA), the terms of which were non-negotiable, and to comply with the App Store Review Guidelines that imposed the following terms upon those app developers, and enforcing those terms against developers, including the second applicant and iOS app developer group members:

(i)    iOS apps may be distributed only if selected by the first respondent in its sole discretion for distribution via the App Store, subject to trivial exceptions;

(ii)    an iOS app may not provide, unlock or enable additional features or functionality through distribution mechanisms other than the App Store, Custom App Distribution or TestFlight;

(iii)    app developers must not distribute their iOS apps to third parties via distribution methods other than those expressly permitted by the first respondent;

(iv)    interpreted code downloaded to an iOS app may not create a store or storefront for other code or iOS apps;

(v)    iOS apps may only use Application Programming Interfaces (APIs) which are contained in software provided to app developers by the first respondent in the manner prescribed by the first respondent and must not use or call any private APIs;

(vi)    app developers must not allow users to access content, subscriptions or features they purchased from the developer’s own website or another app distribution channel without also making it available as an in-app purchase within their iOS apps distributed via the App Store;

(vii)    app developers seeking to distribute iOS apps must appoint the first and second respondents as their agent for the marketing and delivery of the developer’s app to iOS users located in Australia;

(viii) app developers are prohibited from issuing any refunds to users of their iOS apps?

8.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct (described in Question 10) that had or was likely to have the effect, of substantially lessening competition in the iOS in-app payment solutions market by preventing or prohibiting app developers and users from using payment methods other than the first respondent’s payment solution (IAP) for purchasing digital content for use in-app, by requiring app developers to use IAP for all in-app purchases of digital content in iOS apps and by prohibiting them from using an alternative payment method within that iOS app, and by prohibiting app developers from directing users from within iOS apps to alternative payment methods for purchases of digital content?

9.    Between 6 November 2017 and 20 June 2022, did the first respondent or the second respondent engage in conduct described in Question 10 that had the purpose of substantially lessening competition in the iOS in-app payment solutions market by preventing or prohibiting app developers and users from using payment methods other than IAP for purchasing digital content for use in-app, by requiring app developers to use IAP for all in-app purchases of digital content in iOS apps and prohibiting them from using an alternative payment method within that iOS app, and by prohibiting app developers from directing users from within iOS apps to alternative payment methods for purchases of digital content?

10.    Between 6 November 2017 and 20 June 2022, did the conduct referred to in Questions 8 and 9 comprise requiring app developers that wish to distribute iOS apps to enter into the DPLA and comply with the App Store Review Guidelines that impose the following terms upon those app developers, and enforcing those terms against developers:

(i)    if developers want to unlock features or functionality within their iOS app, they:

A.    must use IAP; and

B.    must not use their own mechanisms to unlock content or functionality;

(ii)    iOS apps and their metadata may not include buttons, external links, or other calls to action that direct customers to purchasing mechanisms other than IAP?

15    Apple opposes the questions and answers in the form proposed. It says that the composite questions put forward by the class applicants should be rejected because they are imprecise, inaccurate and confusing.

16    Take proposed question 5, which concerns the iOS app distribution services market. The class applicants’ proposed question 5 asks:

Between 6 November 2017 and 20 June 2022, did the first respondent and/or the second respondent engage in conduct (described in Question 7) that had the purpose, and that had or was likely to have the effect, of substantially lessening competition in the iOS app distribution services market by:

(i)    requiring that app developers who wished to distribute iOS apps to iOS device users do so only via the App Store;

(ii)    prohibiting the distribution of iOS apps to iOS devices by any means other than the App Store, save for certain trivial exceptions expressly permitted;

…

17    Apple says that the vice in this question is that it seeks to merge the findings as to Apple’s conduct, on the one hand, and the purpose or effect of that conduct, on the other, into one composite question. Apple says that in doing so it defines the “conduct” the subject of the finding twice and in ways that are imprecise and inconsistent. Apple says that in the first instance, the relevant conduct is defined as the conduct “described in Question 7”, which question sets out the terms of the developer agreement and DPLA. But the question then goes on in the sub-paragraphs following the word “by” to identify a further list of conduct engaged in by Apple. Apple says that this list is expressed at a higher level and is untethered to the terms of the developer agreement and DPLA which, moreover, as “described in Question 7”, include terms that apply to both Apple’s conduct in the iOS app distribution market and the iOS payment solutions market. Question 5 is concerned with only the former. Apple then says that the class applicants’ proposed questions 6 and 7 then compound this confusion. It says that question 7 does so by asking, in a circular fashion, whether “the conduct referred to in Question 5”, which is the conduct “described in Question 7”, comprised the matters thereafter set out in question 7. And it says that question 6, for its part, asks whether Apple engaged in additional conduct with the same purpose, effect or likely effect as identified in question 5. It says further that the class applicants’ proposed questions 8, 9 and 10 follow the same structure for the iOS in-app payment solutions market. Apple then winds up by saying that none of this is helpful or likely to enable the clear identification of the boundaries and content of the statutory estoppel binding group members.

18    Contrastingly, Apple lauded the virtues and felicity of its proposed questions which it said attractively disaggregated the composite questions and put them in a logical sequence that reflected my liability findings in Epic v Apple.

19    Its proposed question 5 concerned Apple’s conduct of requiring iOS app developers to enter into the relevant contractual agreements. It simply asked whether during the relevant period Apple required app developers to enter into the developer agreement and DPLA, the terms of which were essentially non-negotiable. The answer was “yes” for the first respondent.

20    Its proposed question 6 concerned the terms of those agreements. It asked whether during the relevant period the developer agreement and the DPLA including the relevant guidelines had the terms identified in the class applicants’ question 7. It said that the minor differences in the drafting of the sub-paragraphs was to align the language as closely as possible to my findings in Epic v Apple about the content of those terms, and to remove unnecessary cross-references to specific clauses.

21    Its proposed question 7 asked whether during the relevant period Apple enforced the iOS restrictive terms against iOS app developers. This was answered by reference to my findings in Epic v Apple.

22    Its proposed question 8 asked whether during the relevant period Apple’s conduct in restricting direct downloading or sideloading of native iOS apps insofar as described in the answers to the previous questions had the purpose or effect of substantially lessening competition in the iOS app distribution services market.

23    Apple adopted the same structure in proposed questions 9 to 13 for the in-app payment solutions market.

24    Generally, Apple says that the class applicants have not identified what detail in their questions is missing in Apple’s proposed questions. And it says that in circumstances where Apple’s proposed questions are otherwise clearer and more precise, they should be preferred.

Analysis

25    Now I have discussed the same type of dispute in my reasons in Epic v Apple (No 2) and would incorporate my discussion concerning the analogous proposed declarations of Epic.

26    I agree with the class applicants that the substantive difference between the competing versions is that the class applicants’ proposed common questions are expressed with detail and specificity, whereas Apple’s proposed common questions elide much of the detail. But detail and specificity are necessary for s 33ZB orders.

27    First, as I have already indicated, common questions following judgment serve the purpose of binding the identified parties and group members pursuant to s 33ZB. By that process group members are bound by the determination of the claims giving rise to the common questions, which creates what has been described as a statutory estoppel. And it is the precision of orders under s 33ZB which allows the boundaries and content of that statutory estoppel to be specified.

28    Second, one of the purposes of common questions and answers is to allow a party disaffected by the determination to challenge the answers by way of appeal as contemplated by s 33ZC(1). Accordingly, the common questions must be framed in such a way as to provide a framework for any such appeal.

29    Third, the content of the common questions and answers reflects the extent to which the class applicants represent the group members with respect to their interests in that regard and the group members claim through the applicants to the extent of that interest. The relevant principle concerning a privy in interest is that one who claims through another is, to the extent of his claim, subject to all estoppels affecting the person through whom he claims, which in turn is informed “by the theory that a person who takes a benefit ought also to bear a burden” (Timbercorp Finance at [54] per the plurality). Clearly, common questions need to be stated with a degree of specificity so that the precise nature of the privy relationship is defined.

30    Fourth, a further purpose of common questions is to determine the degree to which group members may have other individual claims which do not form part of the subject matter of the proceeding. Again, only common questions and answers formulated with precision and specificity are capable of fulfilling such a purpose.

31    Fifth, common questions and answers made after a trial on liability, as here, are of a different character to stipulated questions or issues made under Merck orders that some judges favour, which are made at a stage before the stage one trial in a representative proceeding. Merck type orders are a case management tool which assist the parties and the Court to consider and determine other evidentiary and trial steps and issues with flexibility and generality to achieve proper case management purposes. Contrastingly, s 33ZB orders made by reference to common questions following judgment serve the substantive purposes just described, and so necessitate a more specific and precise approach.

32    Sixth, Apple’s argument that the conduct is not clearly defined is not made out for the reasons that I discussed in Epic v Apple (No 2).

33    In the circumstances, the class applicants’ form of common questions 5 to 10 engage with the detail and specifics of Apple’s contravening conduct and I prefer them to the common questions proposed by Apple. But I should make two other points before leaving this topic. First, I have deleted the class applicants’ formulation of question 5(vi) for the short reasons that I discussed in Epic v Apple (No 2). Second, in the common questions there is no geographic limitation concerning the users, the particular storefront of the App Store, the developers or payment solution providers, consistently with what I said in Epic v Apple (No 2) concerning my findings as to the s 46 contraventions and the declaration embodying them that I have made in that case.

34    Let me turn then to the dispute concerning the questions and answers to be made in the Google class action, putting to one side for the moment the overcharge question.

Liability common question 10 – Google class action

35    The class applicants and Google were largely in agreement on the appropriate common questions and answers arising out of my findings in Anthony v Apple and the orders to be made pursuant to s 33ZB.

36    But there was a dispute about the scope of conduct included within common question 10 concerning Project Hug and the Games Velocity Program (GVP) agreements. Google submitted that this common question and answer should reflect the contravening conduct as found by me. It was said that on my findings, that conduct did not extend to requiring developers to undertake to promote all mobile titles on the Play Store in the same or an equivalent manner as the equivalent title was promoted on a comparable platform (promotion clause), or to make good faith efforts to include each title on the Play Store in pre-registration, open beta and other relevant early access programs (early access clause). The class applicants proposed to frame question 10 in terms that included the promotion clause and early access clause.

37    The class applicants’ proposed question 10 concerned the conduct engaged in by the first and the second respondents during the relevant period that was found to have the purpose and likely effect of substantially lessening competition in the Android mobile app distribution market by preventing or hindering the development or expansion of rival Android app stores by making it impossible for such stores to offer differentiated content from certain major gaming app developers. Subject to two matters, the parties were agreed on the content of the common question and answer.

38    It is convenient at this point to set out the class applicants’ proposed question 10 being:

10.    Did the conduct referred to in question 9 comprise ‘Project Hug’, later known as the ‘Games Velocity Program’ (GVP), and the GVP agreements, under which certain major gaming app developers were promised benefits, on condition that those developers undertook to do a combination of some or all of the following:

(i)    release all mobile titles on the Play Store at the same time or before their release on any other mobile distribution channel, including iOS;

(ii)    promote all mobile titles on the Play Store in the same or an equivalent manner as the equivalent title is promoted on a comparable platform;

(iii)    ensure that the core content, features and functionality of mobile titles available on the Play Store were the same as on comparable platforms and through other mobile distribution channels;

(iv)    not remove any mobile titles from the Play Store unless required by Google, an applicable law, or as otherwise agreed in writing between the parties; and

(v)    make good faith efforts to include each title on the Play Store in pre-registration, open beta, and other relevant early access programs?

39    First, Google said that in the chapeau to the question, the words “a combination of some or all of” should be removed. Google said that I did not find, for example, that the inclusion of any one of the provisions set out in subparagraphs (i) to (v) alone constituted contravening conduct. It said that in my liability findings I found that the anti–competitive purpose and likely effect resulted from the terms as a whole; see GJ [4148] and [4221].

40    Second, Google said that subparagraphs (i) to (v) of common question 10 set out the obligations that developers generally agreed to in exchange for Google’s commitments under the GVP agreements; see GJ [4126] to [4131]. Now except for the sim-ship clause and the content parity clause, there was variation as to what terms were in the GVP agreements. Further, there was also some variation as to the precise language used for those two clauses. But contrary to the class applicants’ position, Google says that I did not find that the second obligation (the promotion clause) or the fifth obligation (the early access clause) were the product of any proscribed purpose on the part of Google or that they had any proscribed likely effect.

Analysis

41    Now it may be accepted that my findings in Epic v Google were not explicit as to the precise combination of terms within each GVP agreement that had the likely effect of substantially lessening competition.

42    In Epic v Google I said at GJ [4268] to [4279]:

Now in my view, in the counterfactual, the Project Hug developers would be free to distribute differentiated or exclusive content through rival Android app stores, which those stores would promote so as to entice users away from the Play Store. Content of that nature would also give rival stores credibility in the eyes of users and other developers, which would assist those stores to grow.

And during the development of Project Hug, that is what Google was worried might occur if it did not take action.

Seen in that light, the GVP agreements, although limited in number, in likely effect precluded the most effective means by which a rival app store might get itself off the ground.

The GVP agreements prevented prospective competitors to the Play Store doing precisely what the Epic Games Store did when it entered the PC app store market, namely, entering into exclusivity agreements with key developers whose apps were most likely to attract users.

Now Google says that because the number of GVP agreements were limited and the total revenue of the particular developers is limited, the agreements do not or did not substantially lessen competition.

But as to the number of agreements, the reality is that Google chose the particular developers precisely because they were influential and were likely to take other developers with them if they departed the Play Store.

As Google itself recognised, the developers chosen were “beacons of the ecosystem”. If those developers did not have the capacity to make a material impact in the app distribution market, Google would not have targeted them.

Further, as to the total revenue, at the time the GVP agreements were introduced the target developers accounted for 31% of Play Store revenues globally. Professor Asker’s focus on the Australian revenue share for those developers is beside the point, since a rival app store will be concerned with its ability to compete for global, not only Australian, revenues.

Google also says that neither the GVP agreements nor the AVP agreements require Play Store exclusivity. But in circumstances where the Play Store is the incumbent, it does not require exclusive content in order to maintain its user base. Rather, as Epic points out, it is prospective rivals who require exclusive or differentiated content, to draw users away from the Play Store. Project Hug denied them that content.

Further, Google considered Project Hug to be a success, that is, it successfully contained the contagion risk and quashed the nascent threat to the Play Store’s dominance. As Epic correctly says, it was for that reason that Google did not consider it necessary to extend the agreements.

Now Professor Asker said that the GVP agreements addressed the coordinated adoption problem in respect of the Play Store and also seek to prevent app store fragmentation. But in respect of the coordinated adoption problem, Google does not have that problem. That point goes nowhere. Further, requiring developers to “sim-ship” their titles on the Play Store is of commercial benefit to Google only. Further, I agree with Epic that the notion that preventing app store fragmentation is a benefit to competition, a point pushed at one stage by Mr Moore SC, pushes the envelope to say the least.

In my view, Project Hug and the GVP agreements had the likely effect of substantially lessening competition. But I am not convinced that it has been shown that they had that actual effect.

43    Further, as to proscribed purpose, I found that “Google’s purpose in including the ‘sim-ship’, ‘non-removal’ and ‘content parity’ provisions in the GVP agreements … was to prevent or hinder competition from rival Android app stores”; see GJ [4221] (also see [4150] and [4151]). No finding of contravention was made in relation to the promotion clause or the early access clause.

44    As to likely effect, I found that Project Hug and the GVP agreements had the likely effect of substantially lessening competition; see GJ [4279]. But my analysis of the likely effect of Project Hug and the GVP agreements concerned the sim-ship clause (reflected in subparagraph (i)) and the content parity clause (reflected in subparagraph (iii)), not the promotion clause or the early access clause: see GJ [4150] and [4151].

45    I found that in the counterfactual Project Hug developers would be free to distribute differentiated or exclusive content through rival Android app stores, which those stores would promote so as to entice users away from the Play Store and which would give rival stores credibility in the eyes of users and other developers, which would assist those stores to grow: GJ [4268]; see also GJ [4271] (preventing exclusivity agreements), [4276] and [4278]. In this counterfactual, there is no sim-ship clause or content parity clause, but the promotions clause and early access clause do not feature in the analysis.

46    Similarly, I found that the GVP agreements in likely effect precluded the most effective means by which a rival app store might get itself off the ground; see GJ [4270]. Again, the analysis in support of that conclusion did not place any significance on the promotions clause or early access clause.

47    In the circumstances and after hearing orally from the parties, I have accepted Google’s position concerning question 10.

48    Let me now turn to the overcharge question, and for that purpose it is convenient to deal with both class actions together.

Disputed commission overcharge question

49    In the Apple class action, the class applicants’ proposed question and answer concerning commission overcharge are:

Between 6 November 2017 and 20 June 2022, were commissions paid by the Second Applicant and iOS App Developer Group Members for purchases of iOS apps and in-app digital content within iOS apps by iOS Consumer Group Members materially higher than commissions that would have existed had the First Respondent not engaged in conduct in contravention of s 46(1) of the CCA?

Answer: Yes.

50    In the Google class action, the class applicants’ proposed question and answer concerning commission overcharge are:

Between 6 November 2017 and 20 June 2022, were commissions paid by the Second Applicant and Android App Developer Group Members for purchases of Android apps and in-app digital content within Android apps by Android Consumer Group Members materially higher than the commissions that would have existed had the First and Second Respondents not engaged in conduct in contravention of s 46(1) of the CCA?

Answer: Yes.

51    Now these proposed common questions were opposed by the respondents. Indeed, originally Google and Apple said that the Court lacked the power to make cognate declarations on these topics because each was an “interlocutory declaration” which should not be made for the reasons discussed in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [128] per Gummow and Hayne JJ, a case that I am well familiar with. As is obvious, I do not need to waste time on such an issue given that questions and answers together with a s 33ZB order can easily step around any such perceived difficulty.

52    The class applicants submit that their proposed questions are supported by my findings in Anthony v Apple.

53    First, I said at [35]:

Now I have concluded on the evidence as a whole that the counterfactual commission rates would likely have been materially less than were charged by Apple and Google and potentially others during the relevant period, but by how much I cannot say. I will need to hear further from the parties as to this once they have had a chance to consider my reasons.

54    Second, I said at [85]:

In the first place, the class applicants have not asked me to defer the issue. Rather, the class applicants say that I am in a position to determine the issue, but have also indicated that other options open to me include not determining a single rate but a range, or finding simply that there was a material overcharge without further specification. Indeed, it is that last option that I have selected from the menu.

55    Third, I said at [858]:

In both class actions in my view the commissions payable by developers would likely have been materially less absent the contravening conduct of Apple and Google that I have found, that is, in any applicable counterfactual scenario.

56    Further, the class applicants say that the substance of my findings is illustrated by other findings.

57    I said at [320] to [336] and [352] to [365] that it was likely that in the counterfactual there would have been competition which “would have put substantial downward pressure on commissions paid by developers on paid apps and in-app purchases” (at [320]).

58    Further, I said at [444] to [516], where I rejected the criticisms of Mr Holt’s comparator analysis, that “[g]enerally speaking, and notwithstanding its imprecision, the comparator analysis performed by Mr Holt does tend to have some merit” (at [516]). And “the method put forward by Mr Holt is the most reliable means of measuring the counterfactual commission rate” (at [833]).

59    The class applicants say that I found in substance that the commissions paid by app developer group members were materially higher than would have existed absent the contravening conduct and that I said that the commissions would likely have been materially lower.

60    The class applicants say that I have also found that it is not yet possible to quantify the difference between the commissions actually paid and the commissions that would have been paid absent the contravening conduct (at [859]), in circumstances where there was not necessarily a single figure for the counterfactual commission as such rates may “vary depending upon the time period one is considering or possibly the type of app or possibly developer revenue type considerations” (at [36]). The class applicants say that these issues relate to the quantification of the overcharge for each app developer group member and are to be determined at a later stage of proceedings.

Analysis

61    Apple opposes the overcharge question on the basis that I have not yet made any final finding of fact about the commissions paid by the second applicant and iOS app developer group members that could be the subject of a s 33ZB order.

62    Now as the class applicants correctly observe, I stated in my reasons in Anthony v Apple that commission rates “would likely have been materially less” but for Apple’s contravening conduct (at [35], [858]). But that statement was qualified by the following observations (at [541] to [543]):

I tend to agree with Apple that the class applicants have not provided any sound basis for me to conclude that if there was some form of contravening conduct and even overcharge in respect of some types of apps, that this can be extrapolated to a finding that there was an overcharge that applied equally across all apps.

Further, the commissions payable by developers may vary depending on their circumstances and may vary and have varied over time. App developers may pay no commission on transactions associated with some of their apps. They may pay a rate of 15% on certain transactions which take place through the App Store in respect of other iOS apps which they develop.

Conclusion

I do not propose to deal further in these reasons with the counterfactual commission and overcharge questions at this time. I will need to hear further from counsel in the light of the specific contraventions that I have found against Apple.

63    As this passage makes plain, I have not found that all iOS app developers, or even that the second applicant or any specific iOS app developer, paid inflated commissions during the relevant period. I agree with Apple that it would accordingly be inappropriate for a s 33ZB order to be made in the terms proposed by the class applicants. The effect of such an order would be to allow the second applicant and iOS app developer group members to bind Apple to a finding of overcharge when, as I observed, at least some of those persons may have paid no commission at all or a commission rate lower than any counterfactual commission that may ultimately be found.

64    And this issue is not addressed by saying that the term iOS app developer group member is defined to only include persons who have suffered loss and damage, thereby self-excluding persons who have suffered no loss. If an order is made in the terms proposed, Apple would be unable to deny in any future proceedings that the commissions paid by each iOS app developer group member were “materially higher” than they would have been but for the contravening conduct. Difficulties of this kind are the reason why one should not make s 33ZB orders that may be affected by different facts being found.

65    Let me say something about Google’s position.

66    I agree with Google that read in context, and having regard to my judgment as a whole, the statement upon which the class applicants rely was not a conclusive finding of fact relevant to the determination of the claim of the class applicants or any individual group member. I left open the question whether and to what extent the class applicants or any other group members in fact incurred an overcharge.

67    I said at [35] and [36]:

Now I have concluded on the evidence as a whole that the counterfactual commission rates would likely have been materially less than were charged by Apple and Google and potentially others during the relevant period, but by how much I cannot say. I will need to hear further from the parties as to this once they have had a chance to consider my reasons.

I should also say that I am not convinced that there should be a single figure for the counterfactual commissions. Any relevant counterfactual commission may vary depending upon the time period one is considering or possibly the type of app or possibly developer revenue type considerations.

68    At [854] to [856], I said:

Google has made the following observations with which I agree.

It is unclear whether the conduct that I have found affected all types of apps in the same way, including all apps developed by developer group members, such that it can be concluded not only that overcharging in fact occurred, but that it occurred in respect of all apps, and thereby impacted upon all types of developers and app users.

And it is unclear whether this effect was the same across all apps, so that it is appropriate for me to arrive at a single answer in relation to overcharge which applies equally to all types of apps, developers and app users. The commissions payable by developers vary depending on their circumstances and have varied over time. I will need to hear further from counsel.

69    This led to my conclusion at [858] and [859]:

In both class actions in my view the commissions payable by developers would likely have been materially less absent the contravening conduct of Apple and Google that I have found, that is, in any applicable counterfactual scenario.

But at this stage I am not in a position to quantify the difference between the commissions actually paid and the commissions that would have been paid in any applicable counterfactual scenario.

70    When the reasons are read as a whole, it is apparent that I stopped short of concluding that the class applicants or any specific group member paid a higher counterfactual commission as a result of the conduct. My conclusion left open the possibility that the class applicants and group members may not have paid any overcharge. That being so, the question proposed by the class applicants is inappropriate to answer.

71    More generally, the question of whether there was a material overcharge will depend on different facts being found in the cases of group members. As is clear from my reasons, I did not find, and was not able to find, that any particular app developer or app user had suffered an overcharge, or had been charged materially higher commissions than would have existed had the respondents not engaged in conduct in contravention of s 46(1) of the Competition and Consumer Act 2010 (Cth).

72    Further, the class applicants’ assertion that the proposed common finding will remain unchanged for group members no matter what the precise outcome of the quantification exercise, because any person who has not suffered loss or damage will fall outside the definition of a group member, ignores the fact that the conduct may not affect all apps in the same way. It also overlooks the fact that it involves circular reasoning that would deprive the suggested common question of any real utility. This is because I would still need to make findings as to whether any particular group member had suffered loss independent of this common question and answer, at which point, if loss were established, this common question and answer would not add anything.

73    Further, the word “likely” should not be understood as a reference to a finding on the balance of probabilities but rather as a reference to a preliminary view, because I made no finding and was not able to finally determine whether there had been an overcharge.

74    Further, my finding that “the comparator analysis performed by Mr Holt does tend to have some merit” (at [516]) and “is the most reliable means of measuring the counterfactual commission rate” (at [833]), cannot be divorced from my ultimate conclusion that that methodology was insufficient to permit me to reach any finding as to the quantum of counterfactual commission that the class applicants or group members would have paid.

75    For these reasons I will not stipulate or answer any question on the overcharge issue in the Apple class action or the Google class action at this time.

Conclusion

76    For the foregoing reasons, I will stipulate and answer the questions in the Apple class action in the terms indicated, and I will also make the necessary s 33ZB order. Further, for the foregoing reasons, on 22 May 2026 I stipulated and answered the various questions in the Google class action and made the necessary s 33ZB order.

Associate:

Dated:    22 October 2026