Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 3) [2002] FCA 1294

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 3) [2002] FCA 1294

The without prejudice communications were admissible on costs because s 131(2)(h) turns on legal relevance and is not displaced by the parties' use of the label without prejudice. However, Safeway did not establish that the Commission acted imprudently or unreasonably in declining the compromise proposal, because the proposal did not identify with sufficient particularity why the Commission's case would fail and, at the relevant time, the evidence did not make the Commission's failure inevitable. The Commission's case was not maintained in wilful disregard of evidence and was not groundless. Although Safeway and Mr Jones failed on some issues, those failures did not constitute special...

Jurisdiction
Australia
Judgment Date
24 October 2002
Procedural Posture
Costs in Federal Court Trade Practices Act Proceeding / Costs Determination After Dismissal of the Application Against the First and Third Respondents
Outcome
The application for indemnity costs and the Commission's proposed reduction of costs were rejected; the applicant was ordered to pay the first and third respondents' costs of and incidental to the application.
Legal Topics
['costs' 'indemnity Costs' 'offer of Compromise' 'without Prejudice Communications' 'admissibility of Settlement Communications on Costs' 'trade Practices Act Contraventions']
['competition and Consumer Law' 'civil Procedure' 'evidence'] ['costs' 'indemnity Costs' 'offer of Compromise' 'without Prejudice Communications' 'admissibility of Settlement Communications on Costs' 'trade Practices Act Contraventions']

Case Brief

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Procedural Posture

Costs in Federal Court Trade Practices Act Proceeding / Costs Determination After Dismissal of the Application Against the First and Third Respondents

Legal Issues

  1. 1 ["Whether without prejudice communications between the parties' solicitors were admissible on the question of costs under s 131(2)(h) of the Evidence Act 1995 (Cth)." 'Whether evidence of the costs incurred by Safeway and Mr Jones after the without prejudice communications was admissible.' "Whether the Commission's refusal of Safeway's compromise proposal was unreasonable or imprudent so as to justify indemnity costs after 17 May 1999." "Whether the Commission's case about Safeway's policy was maintained in wilful disregard of available evidence or involved groundless contentions which unduly prolonged the case." 'Whether the costs awarded to Safeway and Mr Jones should be reduced because they failed on some issues.']

Ratio Decidendi

The without prejudice communications were admissible on costs because s 131(2)(h) turns on legal relevance and is not displaced by the parties' use of the label without prejudice. However, Safeway did not establish that the Commission acted imprudently or unreasonably in declining the compromise proposal, because the proposal did not identify with sufficient particularity why the Commission's case would fail and, at the relevant time, the evidence did not make the Commission's failure inevitable. The Commission's case was not maintained in wilful disregard of evidence and was not groundless. Although Safeway and Mr Jones failed on some issues, those failures did not constitute special...

Court Disposition

The application for indemnity costs and the Commission's proposed reduction of costs were rejected; the applicant was ordered to pay the first and third respondents' costs of and incidental to the application.

Orders

  • ["The applicant pay the first and third respondents' costs of and incidental to the application."]