TX Australia Pty Limited v Australian Competition and Consumer Commission (No 2) [2020] FCA 1503

TX Australia Pty Limited v Australian Competition and Consumer Commission (No 2) [2020] FCA 1503

The intervener, having sought leave to intervene on the explicit basis it would bear its own costs and having presented arguments no different to those of the Ten parties, is not entitled to costs against the applicant, nor for the notice to produce.

Parties
Applicant: TX Australia Pty Limited; First Respondent: Australian Competition and Consumer Commission; Second Respondent: Network Ten (Sydney) Pty Ltd; Third Respondent: Network Ten (Melbourne) Pty Ltd; Fourth Respondent: Network Ten (Brisbane) Pty Ltd; Fifth Respondent: Network Ten (Adelaide) Pty Ltd; Sixth Respondent: Network Ten (Perth) Pty Ltd; Intervener: BAI Communications Pty Limited
Jurisdiction
Australia
Judgment Date
19 October 2020
Procedural Posture
Costs Application (interlocutory) / Post Judgment, Costs on Interlocutory Application
Outcome
Intervener's costs application dismissed with costs to applicant.
Legal Topics
Costs, Interveners, Judicial Review, Notice to Produce
Commercial Law Competition Law Civil Procedure Costs Interveners Judicial Review Notice to Produce

Case Brief

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Parties

TX Australia Pty Limited

Applicant

Australian Competition and Consumer Commission

First Respondent

Network Ten (Sydney) Pty Ltd

Second Respondent

Network Ten (Melbourne) Pty Ltd

Third Respondent

Network Ten (Brisbane) Pty Ltd

Fourth Respondent

Network Ten (Adelaide) Pty Ltd

Fifth Respondent

Network Ten (Perth) Pty Ltd

Sixth Respondent

BAI Communications Pty Limited

Intervener

Procedural Posture

Costs Application (interlocutory) / Post Judgment, Costs on Interlocutory Application

Legal Issues

  1. 1 Whether the intervener is entitled to have the applicant pay its costs of the proceeding or, alternatively, its costs relating to a notice to produce.
  2. 2 Whether an intervener, having sought leave to intervene on a 'bear own costs' basis, can later seek costs against an unsuccessful party.

Ratio Decidendi

The intervener, having sought leave to intervene on the explicit basis it would bear its own costs and having presented arguments no different to those of the Ten parties, is not entitled to costs against the applicant, nor for the notice to produce.

Court Disposition

Intervener's costs application dismissed with costs to applicant.

Orders

  • The interlocutory application filed by BAI Communications Pty Limited dated 21 August 2020 be dismissed.
  • BAI Communications Pty Limited pay the applicant's costs of the interlocutory application as agreed or taxed.