BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557

BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557

The successful party is ordinarily entitled to its costs, but where the NCC introduced a distinct, unsuccessful economic test, its costs should be discounted for that issue; Fortescue was not deprived of costs because its unsuccessful arguments were not distinct or severable and were reasonably raised. Court orders costs, with exclusions for NCC's costs relating to specific points of defence for the economic test.

Parties
Applicant: BHP Billiton Iron Ore Pty Ltd; First Respondent: National Competition Council; Second Respondent in VID 1641/04, Applicant in WAD 39/05: Fortescue Metals Group Limited; Second Respondent in WAD 39/05: BHP Billiton Minerals Pty Ltd; Second Respondent in WAD 39/05: Mitsui Iron Ore Corporation Pty Limited; Second Respondent in WAD 39/05: Itochu Minerals and Energy of Australia Pty Limited
Jurisdiction
Australia
Judgment Date
19 April 2007
Procedural Posture
Costs Order Following Principal Judgment / Post Judgment, Determination of Costs
Outcome
Costs awarded largely to successful parties, with exclusions for NCC's costs relating to rejected economic test contentions; quantification and fixing of costs left to taxation.
Legal Topics
Costs, Discretion, Apportionment, Federal Court Practice
Civil Procedure Costs Discretion Apportionment Federal Court Practice

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 21 Party arguments 2
Sign in to unlock

Parties

BHP Billiton Iron Ore Pty Ltd

Applicant

National Competition Council

First Respondent

Fortescue Metals Group Limited

Second Respondent in VID 1641/04, Applicant in WAD 39/05

BHP Billiton Minerals Pty Ltd

Second Respondent in WAD 39/05

Mitsui Iron Ore Corporation Pty Limited

Second Respondent in WAD 39/05

Itochu Minerals and Energy of Australia Pty Limited

Second Respondent in WAD 39/05

Procedural Posture

Costs Order Following Principal Judgment / Post Judgment, Determination of Costs

Legal Issues

  1. 1 Whether costs should be apportioned where a successful party failed on distinct issues or inquiries
  2. 2 Whether statutory body (NCC) should be denied costs for evidence relating to an inquiry on which it failed
  3. 3 Principles guiding exercise of discretion in costs orders

Ratio Decidendi

The successful party is ordinarily entitled to its costs, but where the NCC introduced a distinct, unsuccessful economic test, its costs should be discounted for that issue; Fortescue was not deprived of costs because its unsuccessful arguments were not distinct or severable and were reasonably raised. Court orders costs, with exclusions for NCC's costs relating to specific points of defence for the economic test.

Court Disposition

Costs awarded largely to successful parties, with exclusions for NCC's costs relating to rejected economic test contentions; quantification and fixing of costs left to taxation.

Orders

  • The costs of VID 1641 of 2004 and WAD 39 of 2005 are to be assessed and taxed together.
  • In VID 1641 of 2004, applicant to pay first respondent's costs except those solely related to economic test contentions (paragraphs 16 and 17 of points of defence); applicant to pay second respondent's costs.