Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3)

In the Federal Court of Australia, the Australian Competition and Consumer Commission (ACCC) brought proceedings against Australian Safeway Stores Pty Ltd (Safeway) and Mr. Jones. The dispute revolved around the admissibility of certain evidence, specifically file notes and letters, in the context of "without prejudice" communications. Safeway and Mr. Jones argued for the admissibility of their costs incurred after these communications, which the ACCC opposed on the grounds of relevance.

The court had to determine whether the evidence of the costs incurred by Safeway and Mr. Jones after the "without prejudice" communications were admissible. The court held that such evidence was not relevant to the issue of whether it was reasonable or unreasonable for the ACCC to reject the offer or proposal. The court reasoned that to consider the quantum of costs incurred after the rejection of the proposal would be to use hindsight in an inappropriate manner. Furthermore, the court noted that the settled practice of the Court generally awards costs on a party/party basis unless there are special or particular circumstances warranting an order for indemnity costs.

The court concluded that the issues raised by the ACCC did not constitute special or particular circumstances warranting a reduction in the costs to be awarded to Safeway and Mr. Jones. The court held that the ACCC's proposal to reduce the costs by 20% was arbitrary and not based on the time taken in the trial. Therefore, the ACCC was ordered to pay the costs of the respondents in relation to the application.

ORDERS:
1. The applicant pay the first and third respondents’ costs of and incidental to the application.