Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2020] FCA 598

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2020] FCA 598

Indemnity costs were refused because the ACCC's appeal, although unsuccessful, was not prospectively hopeless and the arguments raised were not foredoomed or unreasonable; factual findings challenged were not indispensable to appeal success and rejection of the compromise offer was not unreasonable. The application did not meet the threshold for departure from an ordinary costs order.

Parties
Appellant: Australian Competition and Consumer Commission; First Respondent: Colgate-Palmolive Pty Ltd; Second Respondent: PZ Cussons Australia Pty Ltd; Third Respondent: Paul Ansell (and another named in the Schedule); Fourth Respondent: Woolworths Limited
Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Interlocutory Application for Indemnity Costs in Appellate Proceedings / Post Appeal, Determination of Costs Application
Outcome
Application for indemnity costs dismissed with costs assessed on the ordinary basis (party-party) or as agreed.
Legal Topics
Indemnity Costs, Offer of Compromise, Reasonableness of Appeal, Public Regulator, Federal Court Appellate Procedure
Competition Law Civil Procedure Costs Indemnity Costs Offer of Compromise Reasonableness of Appeal Public Regulator Federal Court Appellate Procedure

Case Brief

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Parties

Australian Competition and Consumer Commission

Appellant

Colgate-Palmolive Pty Ltd

First Respondent

PZ Cussons Australia Pty Ltd

Second Respondent

Paul Ansell (and another named in the Schedule)

Third Respondent

Woolworths Limited

Fourth Respondent

Procedural Posture

Interlocutory Application for Indemnity Costs in Appellate Proceedings / Post Appeal, Determination of Costs Application

Legal Issues

  1. 1 Whether the ACCC should pay indemnity costs due to appeal being unreasonable or hopeless
  2. 2 Whether unchallenged factual findings rendered the appeal foredoomed to fail
  3. 3 Whether the ACCC unreasonably rejected a genuine offer of compromise

Ratio Decidendi

Indemnity costs were refused because the ACCC's appeal, although unsuccessful, was not prospectively hopeless and the arguments raised were not foredoomed or unreasonable; factual findings challenged were not indispensable to appeal success and rejection of the compromise offer was not unreasonable. The application did not meet the threshold for departure from an ordinary costs order.

Court Disposition

Application for indemnity costs dismissed with costs assessed on the ordinary basis (party-party) or as agreed.

Orders

  • The second respondent's interlocutory application for indemnity costs be dismissed.
  • The second respondent pay the appellant's costs of and incidental to the interlocutory application as assessed or agreed.