Australian Competition & Consumer Commission v Boral Ltd (No 2) [1999] FCA 1641

Australian Competition & Consumer Commission v Boral Ltd (No 2) [1999] FCA 1641

Indemnity costs were refused because, although the respondents' arguments had force, the Commission commenced and continued the proceeding on the basis of well qualified economic and legal advice in an area where s 46 predatory pricing was relatively uncharted, so it was not shown to have acted unreasonably or improperly. Apportionment was also refused because the respondents reasonably relied on expert evidence on costing, had little choice but to contest issues raised against them, and the seriousness and stigma of Pt IV proceedings made it unreasonable to criticise them for contesting the case at every point.

Jurisdiction
Australia
Judgment Date
26 November 1999
Procedural Posture
Practice and Procedure; Costs Following an Unsuccessful Application Alleging Contraventions of S 46 of the Trade Practices Act 1974 (cth) / Costs Determination After the Commission's Application Was Dismissed on 22 September 1999
Outcome
The respondents' application for indemnity costs and the Commission's application for apportionment were both rejected; the Commission was ordered to pay the respondents' costs on a party and party basis with the specified reduction for the 15 November 1999 hearing.
Legal Topics
['costs' 'indemnity Costs' 'apportionment of Costs' 'trade Practices Act 1974 (cth) S 46' 'predatory Pricing' 'part IV Proceedings']
['practice and Procedure' 'competition Law'] ['costs' 'indemnity Costs' 'apportionment of Costs' 'trade Practices Act 1974 (cth) S 46' 'predatory Pricing' 'part IV Proceedings']

Case Brief

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Procedural Posture

Practice and Procedure; Costs Following an Unsuccessful Application Alleging Contraventions of S 46 of the Trade Practices Act 1974 (cth) / Costs Determination After the Commission's Application Was Dismissed on 22 September 1999

Legal Issues

  1. 1 ['Whether the respondents should receive costs on an indemnity basis rather than on a party and party basis' 'Whether the applicant acted unreasonably in instituting and maintaining the s 46 proceeding or in refusing offers of settlement' 'Whether costs should be apportioned because the respondents were unsuccessful on the upstream profit adjustment and proscribed purpose issues' 'Whether the nature and seriousness of Pt IV proceedings affected the appropriate costs order']

Ratio Decidendi

Indemnity costs were refused because, although the respondents' arguments had force, the Commission commenced and continued the proceeding on the basis of well qualified economic and legal advice in an area where s 46 predatory pricing was relatively uncharted, so it was not shown to have acted unreasonably or improperly. Apportionment was also refused because the respondents reasonably relied on expert evidence on costing, had little choice but to contest issues raised against them, and the seriousness and stigma of Pt IV proceedings made it unreasonable to criticise them for contesting the case at every point.

Court Disposition

The respondents' application for indemnity costs and the Commission's application for apportionment were both rejected; the Commission was ordered to pay the respondents' costs on a party and party basis with the specified reduction for the 15 November 1999 hearing.

Orders

  • ["The applicant pay the respondents' costs to be taxed, including reserved costs, save for the costs of and incidental to the hearing on 15 November 1999, which costs shall be reduced by one half."]