Australian Competition & Consumer Commission v Danoz Direct Pty Ltd (ACN 003 546 709) [2003] FCA 1580

Australian Competition & Consumer Commission v Danoz Direct Pty Ltd (ACN 003 546 709) [2003] FCA 1580

The applicant was substantially successful against the first, third and fourth respondents and failed against the second respondent, so costs should generally follow that result. However, after the joint expert report the applicant should have appreciated the difficulty of its non-s 51A case concerning electronic muscle stimulation, while the respondents also could have raised the appropriateness of continuing that aspect; accordingly there should be no order for costs associated with the evidence of Pearn, De Domenico, Wilson and Coombes incurred on or after 20 March 2003. The 1 October 2002 correspondence was not a true offer capable of acceptance so as to dispose of the matter and did...

Jurisdiction
Australia
Judgment Date
28 August 2003
Procedural Posture
Proceedings Alleging Breaches of the Trade Practices Act 1974 (cth) by Publication of Advertisements on Television, on a Website and in Catalogues / Costs Judgment After Trial
Outcome
Costs orders made in favour of the applicant against the first, third and fourth respondents, and in favour of the second respondent against the applicant, subject to exclusions.
Legal Topics
['misleading or Deceptive Conduct' 'representations About Weight Loss, Fat Reduction and Muscle Toning' 'costs' 'settlement Offers' 'expert Evidence']
['competition and Consumer Law' 'civil Procedure'] ['misleading or Deceptive Conduct' 'representations About Weight Loss, Fat Reduction and Muscle Toning' 'costs' 'settlement Offers' 'expert Evidence']

Case Brief

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Procedural Posture

Proceedings Alleging Breaches of the Trade Practices Act 1974 (cth) by Publication of Advertisements on Television, on a Website and in Catalogues / Costs Judgment After Trial

Legal Issues

  1. 1 ["Whether the applicant should pay the second respondent's costs after failing against him" "Whether the first, third and fourth respondents should pay the applicant's costs as unsuccessful respondents" 'Whether costs associated with witnesses Pearn, De Domenico, Wilson and Coombes should be excluded' "Whether the respondents' 1 October 2002 settlement correspondence should affect the costs order"]

Ratio Decidendi

The applicant was substantially successful against the first, third and fourth respondents and failed against the second respondent, so costs should generally follow that result. However, after the joint expert report the applicant should have appreciated the difficulty of its non-s 51A case concerning electronic muscle stimulation, while the respondents also could have raised the appropriateness of continuing that aspect; accordingly there should be no order for costs associated with the evidence of Pearn, De Domenico, Wilson and Coombes incurred on or after 20 March 2003. The 1 October 2002 correspondence was not a true offer capable of acceptance so as to dispose of the matter and did...

Court Disposition

Costs orders made in favour of the applicant against the first, third and fourth respondents, and in favour of the second respondent against the applicant, subject to exclusions.

Orders

  • ["The first, third and fourth respondents pay the applicant's costs of the proceedings, including any amount paid by the applicant to the second respondent hereunder, save for such amounts paid to the second respondent as are referable to costs solely incurred of and incidental to the joinder of the second...