Australian Competition & Consumer Commission v Black on White [2002] FCA 1605

Australian Competition & Consumer Commission v Black on White [2002] FCA 1605

The discretion to award costs under s 43(2) must be exercised based on the actual parties' conduct, offers and responses. The offers made by the fourth respondent were genuine and capable of acceptance. The ACCC's rejection of the offer of 29 October 2001 was unreasonable. Therefore, the ACCC is entitled to costs on a party and party basis up to 11 am on 30 October 2001, and the fourth respondent is entitled to indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
20 December 2002
Procedural Posture
Civil / Costs Determination Following Final Orders
Outcome
Costs orders made: fourth respondent to pay ACCC's party-party costs up to 11 am 30 October 2001; ACCC to pay fourth respondent's indemnity costs after that time.
Legal Topics
['exercise of Discretion in Costs' 'offers of Compromise and Settlement Negotiations' 'representative Proceedings' 'set Off of Costs Orders']
['costs' 'practice and Procedure' 'trade Practices'] ['exercise of Discretion in Costs' 'offers of Compromise and Settlement Negotiations' 'representative Proceedings' 'set Off of Costs Orders']

Case Brief

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Procedural Posture

Civil / Costs Determination Following Final Orders

Legal Issues

  1. 1 ['How should the discretion to award costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth) be exercised in light of competing offers of compromise and the representative nature of the proceeding?' 'Is set-off between compensation awarded and costs liabilities permissible in this context?' "Did the fourth respondent's offers constitute genuine and reasonable offers under O 23 of the Federal Court Rules and/or Calderbank principles, meriting indemnity costs?"]

Ratio Decidendi

The discretion to award costs under s 43(2) must be exercised based on the actual parties' conduct, offers and responses. The offers made by the fourth respondent were genuine and capable of acceptance. The ACCC's rejection of the offer of 29 October 2001 was unreasonable. Therefore, the ACCC is entitled to costs on a party and party basis up to 11 am on 30 October 2001, and the fourth respondent is entitled to indemnity costs thereafter.

Court Disposition

Costs orders made: fourth respondent to pay ACCC's party-party costs up to 11 am 30 October 2001; ACCC to pay fourth respondent's indemnity costs after that time.

Orders

  • ['The fourth respondent pay the costs of the ACCC in respect of its notice of motion filed on 15 June 2001 incurred up to 11 am 30 October 2001 on a party and party basis.' 'The ACCC pay the costs of the fourth respondent in respect of that motion incurred subsequent to 11 am 30 October 2001 on an indemnity basis.']