Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246

The case against Cussons, though ultimately unsuccessful and emphatically rejected, was not so hopeless or foredoomed to fail that the Commission should have realised it prior to trial; the case depended on inferential reasoning from circumstantial evidence, and some support could arguably be drawn from portions of the evidence before trial. The deficiencies in the applicant's case were only meaningfully exposed in the adversarial process. There were no special or unusual features justifying indemnity costs. The respondent's application for indemnity costs was therefore dismissed.

Parties
Applicant: Australian Competition and Consumer Commission; Second Respondent: PZ Cussons Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Interlocutory Application for Indemnity Costs / Costs Application Following Dismissal of Main Proceeding and Appeal
Outcome
Dismissal of second respondent's indemnity costs application; costs awarded to applicant on party-party basis for the application.
Legal Topics
Indemnity Costs, Public Interest Litigation, Federal Court Procedure
Competition Law Costs Civil Procedure Indemnity Costs Public Interest Litigation Federal Court Procedure

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

PZ Cussons Australia Pty Ltd

Second Respondent

Procedural Posture

Interlocutory Application for Indemnity Costs / Costs Application Following Dismissal of Main Proceeding and Appeal

Legal Issues

  1. 1 Whether the applicant's case was so hopeless or foredoomed to fail that indemnity costs should be awarded
  2. 2 Whether a regulator should be subject to indemnity costs for prosecuting an unsuccessful circumstantial case
  3. 3 Whether public interest or complexity of litigation is relevant to the discretion to award indemnity costs

Ratio Decidendi

The case against Cussons, though ultimately unsuccessful and emphatically rejected, was not so hopeless or foredoomed to fail that the Commission should have realised it prior to trial; the case depended on inferential reasoning from circumstantial evidence, and some support could arguably be drawn from portions of the evidence before trial. The deficiencies in the applicant's case were only meaningfully exposed in the adversarial process. There were no special or unusual features justifying indemnity costs. The respondent's application for indemnity costs was therefore dismissed.

Court Disposition

Dismissal of second respondent's indemnity costs application; costs awarded to applicant on party-party basis for the application.

Orders

  • The interlocutory application filed by the second respondent on 1 February 2018 be dismissed.
  • The second respondent pay the applicant's costs of and associated with the interlocutory application.