Australian Competition and Consumer Commission v Air New Zealand Limited (No 14) [2015] FCA 378

Australian Competition and Consumer Commission v Air New Zealand Limited (No 14) [2015] FCA 378

Costs should be apportioned by origin port because the Japan, Singapore, Hong Kong and Indonesia cases were effectively separate. Air NZ was entitled to ordinary costs for the abandoned Japan case, and to costs for Singapore and Hong Kong, but not indemnity costs for Japan because no misconduct or unreasonable commencement or pursuit was shown. Garuda was entitled to its Hong Kong costs, but for Indonesia only 20% of its costs because it succeeded on the determinative market issue while suffering overwhelming defeat on the substantive facts and most legal arguments; no indemnity costs were warranted. Garuda was entitled to costs under the notice to admit procedure for facts later proved,...

Jurisdiction
Australia
Judgment Date
24 April 2015
Procedural Posture
Costs Determination in Civil Penalty Proceedings Concerning Alleged Collusive Behaviour in Air Cargo Markets / After Trial Judgment; Costs Remaining for Determination
Outcome
The parties were directed to prepare short minutes of order giving effect to the reasons. The Court indicated costs orders by origin port, with Air NZ and Garuda receiving costs in part and indemnity costs refused.
Legal Topics
['allocation of Costs After Mixed Success' 'indemnity Costs' 'notices to Admit Facts' 'civil Penalty Proceedings' 'alleged Price Fixing in Air Cargo Markets']
['competition and Consumer Law' 'civil Procedure' 'costs'] ['allocation of Costs After Mixed Success' 'indemnity Costs' 'notices to Admit Facts' 'civil Penalty Proceedings' 'alleged Price Fixing in Air Cargo Markets']

Case Brief

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Procedural Posture

Costs Determination in Civil Penalty Proceedings Concerning Alleged Collusive Behaviour in Air Cargo Markets / After Trial Judgment; Costs Remaining for Determination

Legal Issues

  1. 1 ['Whether costs should be apportioned by reference to separate origin port cases involving Japan, Singapore, Hong Kong and Indonesia.' "Whether the Commission should pay Air NZ's costs relating to the abandoned Japan case on an indemnity basis." 'Whether Air NZ was entitled to its costs for the Singapore and Hong Kong cases despite mixed success on issues.' "What proportion of Garuda's costs for the Indonesia case should be paid by the Commission after Garuda succeeded on the market issue but largely failed on substantive and legal issues." 'Whether Garuda was entitled to costs consequences arising from notices to admit facts under r 22.03 of the Federal Court Rules 2011 (Cth).' 'Whether $2.5 million received by the Commission from settlements with other international airlines should be brought to account.']

Ratio Decidendi

Costs should be apportioned by origin port because the Japan, Singapore, Hong Kong and Indonesia cases were effectively separate. Air NZ was entitled to ordinary costs for the abandoned Japan case, and to costs for Singapore and Hong Kong, but not indemnity costs for Japan because no misconduct or unreasonable commencement or pursuit was shown. Garuda was entitled to its Hong Kong costs, but for Indonesia only 20% of its costs because it succeeded on the determinative market issue while suffering overwhelming defeat on the substantive facts and most legal arguments; no indemnity costs were warranted. Garuda was entitled to costs under the notice to admit procedure for facts later proved,...

Court Disposition

The parties were directed to prepare short minutes of order giving effect to the reasons. The Court indicated costs orders by origin port, with Air NZ and Garuda receiving costs in part and indemnity costs refused.

Orders

  • ['The parties are to prepare short minutes of order to give effect to these reasons within fourteen days hereof.' "The Commission is to pay Air NZ's costs relating to Singapore." 'Air NZ is entitled to its costs for Hong Kong.' "The Commission is to pay Garuda's costs for Hong Kong." "The Commission is to pay 20% of...