GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 3) [2018] FCA 183

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 3) [2018] FCA 183

The applicants were the successful parties and were entitled to all of their party/party costs, excluding costs dealt with by the order of 12 February 2016. The formal offer of compromise did not engage r 25.14(3) because, assessed as a whole, the final orders were not more favourable than the offer, particularly because the offer required an open-ended corrective advertising order whereas no corrective advertising order was made. The Calderbank offer did not justify indemnity costs because refusal of it was not unreasonable in all the circumstances, including that the respondent had some scientific support for some representations and the offer involved little real compromise on the...

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Commercial and Corporations, Regulator and Consumer Protection Proceeding Concerning Misleading or Deceptive Comparative Advertising / Final Orders and Costs Determined on the Papers Following Judgment in Glaxo Smith Kline Australia Pty Ltd V Reckitt Benckiser (australia) Pty Limited (no 2) [2018] FCA 1
Outcome
Declaration and permanent injunction granted; applications for indemnity costs and lump sum costs refused; respondent ordered to pay the applicants' party/party costs if not agreed; claims for corrective advertising and damages or compensation abandoned; application otherwise dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'false Representations' 'comparative Advertising' 'declaratory Relief' 'injunctive Relief' 'indemnity Costs' 'lump Sum Costs' 'offers of Compromise' 'calderbank Offers']
['consumer Law' 'practice and Procedure' 'costs'] ['misleading or Deceptive Conduct' 'false Representations' 'comparative Advertising' 'declaratory Relief' 'injunctive Relief' 'indemnity Costs' 'lump Sum Costs' 'offers of Compromise' 'calderbank Offers']

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Procedural Posture

Commercial and Corporations, Regulator and Consumer Protection Proceeding Concerning Misleading or Deceptive Comparative Advertising / Final Orders and Costs Determined on the Papers Following Judgment in Glaxo Smith Kline Australia Pty Ltd V Reckitt Benckiser (australia) Pty Limited (no 2) [2018] FCA 1

Legal Issues

  1. 1 ['Whether the declaration and injunction should include the representations found to arise from the impugned advertising campaign and extend to substantially identical or substantially the same representations.' 'Whether the applicants should receive all of their costs or only 75% of their party/party costs.' "Whether the respondent's failure to accept the applicants' formal offer of compromise enlivened r 25.14(3) of the Federal Court Rules 2011 so as to justify indemnity costs." "Whether the respondent's failure to accept the applicants' Calderbank offer was unreasonable so as to justify indemnity costs." 'Whether costs should be assessed and ordered by way of a lump sum rather than taxed if not agreed.']

Ratio Decidendi

The applicants were the successful parties and were entitled to all of their party/party costs, excluding costs dealt with by the order of 12 February 2016. The formal offer of compromise did not engage r 25.14(3) because, assessed as a whole, the final orders were not more favourable than the offer, particularly because the offer required an open-ended corrective advertising order whereas no corrective advertising order was made. The Calderbank offer did not justify indemnity costs because refusal of it was not unreasonable in all the circumstances, including that the respondent had some scientific support for some representations and the offer involved little real compromise on the...

Court Disposition

Declaration and permanent injunction granted; applications for indemnity costs and lump sum costs refused; respondent ordered to pay the applicants' party/party costs if not agreed; claims for corrective advertising and damages or compensation abandoned; application otherwise dismissed.

Orders

  • ['Declared that, in the period from August to December 2015, the respondent, in trade or commerce, by publishing, distributing, exhibiting, displaying, broadcasting or communicating the specified materials and representations to the public, engaged in conduct that was misleading or deceptive, or likely to mislead or...