AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BLACK ON WHITE PTY LTD (ACN 061 507 248) and OTHERS
No QG 110 of 1997
SPENDER J BRISBANE 21 APRIL 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 110 OF 1997
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:
BLACK ON WHITE PTY LTD (ACN 061 507 248) FIRST RESPONDENT
NICKI POTERI SECOND RESPONDENT
JAMES NICHOLAS POTERI THIRD RESPONDENT
NICHOLAS JAMES POTERI FOURTH RESPONDENT
JUDGE:
SPENDER J
DATE OF ORDER:
21 APRIL 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The third respondent pay the costs of the Australian Competition and Consumer Commission of and incidental to the amended motion filed by him on 21 July 2003, those costs to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 110 OF 1997
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:
BLACK ON WHITE PTY LTD (ACN 061 507 248) FIRST RESPONDENT
NICKI POTERI SECOND RESPONDENT
JAMES NICHOLAS POTERI THIRD RESPONDENT
NICHOLAS JAMES POTERI FOURTH RESPONDENT
JUDGE:
SPENDER J
DATE:
21 APRIL 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 31 March 2004 I refused relief sought by James Nicholas Poteri in an amended notice of motion filed by him on 21 July 2003. By that motion, Mr Poteri sought a declaration that he was not liable to pay any of the amounts referred to orders of the Court dated 4 April 2001, 22 November 2001, 12 June 2002, 22 October 2002 and 24 February 2003. For the reasons I there expressed, I held that none of those amounts was a debt provable in his bankruptcy, and it followed that he was therefore not released from his obligations to pay those amounts on his discharge from bankruptcy.
At the request of the applicant on the motion, I directed that the applicant on the motion file and serve written submissions by 4 pm Monday 5 April 2004 as to why costs should not follow the ordinary course, and that the respondents file and serve submissions in reply on the question of costs by 4 pm Thursday 8 April 2004.
The submissions on behalf of Mr Poteri acknowledge that the power to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) is wide, and that in the absence of special circumstances costs should follow the event: Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR 40-748 at 48,136. Of course, there may be circumstances where a different result from the usual course can be justified in the exercise of the judicial discretion as to costs.
It was submitted on behalf of Mr Poteri that there were special circumstances in this case. The submissions went so far as to suggest that Mr Poteri should not have to pay or bear any of the costs of the applicant in the previous proceeding. That was part of the relief sought in the amended notice of motion which was dismissed. There was no appeal against the making of the costs order in the principal proceedings, and in my view the Court has no power to set aside those previous orders. In particular, it has no power to set aside the costs orders in reliance on O 35 r 7 of the Federal Court Rules. As I noted in the earlier reasons, Sir Anthony Mason said of a similar jurisdiction in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303:
‘The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.’
As to the submissions directed as to why, notwithstanding Mr Poteri’s failure on his amended notice of motion he should not be ordered to pay the costs of the respondent to that motion, it was submitted on his behalf that where the general principles that were involved were very much a matter of concern to the Government, the Court may order the Government, represented here by the Australian Competition and Consumer Commission (“the ACCC”), to bear its own costs.
It was further submitted that where the matter involves matters of public interest the Court may decline to order costs against someone such as Mr Poteri. It was said that the litigation involved a relatively small amount of money; the action was conducted by the ACCC on behalf of, or in respect of, a number of other individuals; the matter concerned an application by the ACCC under the Trade Practices Act 1974 (Cth) and the issues on the amended notice of motion involved the question of what were provable debts under the Bankruptcy Act 1966 (Cth). For these reasons it was submitted that Mr Poteri should not be ordered to pay the costs of the ACCC in respect of the motion.
In my judgment, none of the circumstances said to constitute exceptional circumstances properly falls into that category. The contention on behalf of Mr Poteri that the sums he was ordered to pay constituted provable debts in his bankruptcy was found to be untenable. There is, in my view, no reason why the usual costs order should not be made. In all the circumstances it is appropriate that Mr Poteri pay the costs of and incidental to his motion to the ACCC. I so order.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .
Associate:
Dated: 21 April 2004
Counsel for the Applicant:
Mr Stephen Lumb
Solicitor for the Applicant:
Australian Government Solicitor
Counsel for the Respondent:
Mr Brian Kelleher
Date of Submissions of Applicant: Date of Submissions of Respondent:
1 April 2004
7 April 2004
Date of Judgment:
21 April 2004
Details
AGLC
Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 454
Case
[2004] FCA 454
Decision Date
CaseChat Overview and Summary
Black on White Pty Ltd, trading as ‘The Paper Store’, was found to have contravened the Australian Consumer Law by engaging in misleading or deceptive conduct in relation to its pricing practices. The Australian Competition and Consumer Commission (ACCC) brought proceedings against Black on White in the Federal Court of Australia. The dispute centred on whether Black on White had misled consumers by displaying price tags on its products that did not reflect the actual price consumers would pay. The ACCC alleged that Black on White’s conduct was misleading because the displayed prices included additional charges that were not disclosed to consumers upfront.
The court had to determine whether Black on White’s conduct constituted misleading or deceptive conduct under section 18 of the Australian Consumer Law. The primary issue was whether the additional charges, which were not disclosed at the point of sale, were sufficient to render the conduct misleading or deceptive. The court also needed to consider whether Black on White had made a genuine effort to comply with the law and whether there was a reasonable basis for the company’s pricing practices.
The Federal Court found that Black on White’s conduct did indeed constitute misleading or deceptive conduct. The court held that the additional charges were significant and not adequately disclosed to consumers, thereby misleading them about the true cost of the products. The court emphasised the importance of transparency in pricing to protect consumers from being misled. The court also rejected Black on White’s argument that the additional charges were reasonable and necessary, finding that the company had not provided a reasonable basis for its pricing practices. Consequently, the court found in favour of the ACCC.
Orders
Orders of the court
The third respondent pay the costs of the Australian Competition and Consumer Commission of and incidental to the amended motion filed by him on 21 July 2003, those costs to be taxed if not agreed.