Australian Competition and Consumer Commission v Air New Zealand Limited (No 14)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Air New Zealand Limited, alleging that Air New Zealand had engaged in misleading or deceptive conduct by offering to sell tickets for travel between Australia and New Zealand at certain advertised prices, but charging additional fees not clearly disclosed to consumers. The case was heard by the Federal Court of Australia. The central issue before the court was the appropriate allocation of costs between the parties, given that both the ACCC and Air New Zealand had partially succeeded on their claims.

The court considered the principle that costs should follow the event, meaning the unsuccessful party generally bears the costs of the successful party. However, the court also recognised that where parties have mixed success on issues, the extent to which this should impact the allocation of costs is a matter of discretion. The court acknowledged that both parties had achieved some success, but the ACCC's primary objective was to protect consumers and enforce competition laws, which the court considered a public interest pursuit. On the other hand, Air New Zealand had incurred significant costs in defending against the allegations.

After weighing these factors, the court determined that while the ACCC had achieved its primary objective, the litigation was complex and involved significant legal issues. The court found it appropriate to order that each party bear its own costs, reflecting the mixed success on the issues. This decision was made to ensure fairness and to avoid penalising either party unduly for their respective levels of success.

The final orders of the court required the parties to prepare and lodge minutes of order within fourteen days, formalising the allocation of costs as determined by the court. This ensured that the practical effect of the court's decision was implemented in accordance with the Federal Court Rules 2011.