Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2017] FCAFC 168

Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2017] FCAFC 168

Although the ACCC was the successful party on the appeal and cross-appeal and would ordinarily receive its costs, a substantial reduction was warranted because it failed on the market harm and financial benefit issue, which was a major forensic contest occupying a significant portion of the written and oral submissions. A 30 per cent reduction was appropriate, resulting in an order that the respondents pay 70 per cent of the ACCC's costs of the appeal and cross-appeal.

Jurisdiction
Australia
Judgment Date
26 October 2017
Procedural Posture
Costs on Appeal and Cross Appeal / Determined on the Papers After Written Submissions
Outcome
Respondents ordered to pay 70 per cent of the appellant's costs of the appeal and the cross-appeal.
Legal Topics
["court's Discretion as to Costs" 'costs Follow the Event' 'partial Success on Appeal' 'reduction of Costs for Unsuccessful Issue' 'pecuniary Penalties']
['costs' 'competition and Consumer Law'] ["court's Discretion as to Costs" 'costs Follow the Event' 'partial Success on Appeal' 'reduction of Costs for Unsuccessful Issue' 'pecuniary Penalties']

Case Brief

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Procedural Posture

Costs on Appeal and Cross Appeal / Determined on the Papers After Written Submissions

Legal Issues

  1. 1 ["Whether the respondents should pay the appellant's costs of the appeal and the cross-appeal where the appellant succeeded overall but failed on the market harm and financial benefits issue." "What reduction, if any, should be made to the appellant's costs because the unsuccessful issue occupied a significant portion of written and oral submissions."]

Ratio Decidendi

Although the ACCC was the successful party on the appeal and cross-appeal and would ordinarily receive its costs, a substantial reduction was warranted because it failed on the market harm and financial benefit issue, which was a major forensic contest occupying a significant portion of the written and oral submissions. A 30 per cent reduction was appropriate, resulting in an order that the respondents pay 70 per cent of the ACCC's costs of the appeal and cross-appeal.

Court Disposition

Respondents ordered to pay 70 per cent of the appellant's costs of the appeal and the cross-appeal.

Orders

  • ["The respondents pay 70 per cent of the appellant's costs of the appeal and the cross-appeal, to be taxed if not agreed."]