Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5)

The Australian Competition and Consumer Commission (ACCC) brought a proceeding against Colgate-Palmolive Pty Ltd, alleging contraventions of the Competition and Consumer Act 2010 (Cth). Colgate sought indemnity costs against the ACCC, arguing that the proceeding was hopeless and bound to fail, and that the ACCC should have realised this before commencing the proceeding. The court was required to decide whether the ACCC's action was justified and reasonable in the circumstances, and whether it should exercise its discretion to award costs other than on a party and party basis.

The court found that the ACCC's case was largely circumstantial and depended on the drawing of inferences from parallel conduct and communications between the parties. While the ACCC's case was difficult and complex, it could not be concluded that it was necessarily hopeless or foredoomed to fail. The court held that there were no other special or unusual features or circumstances which would warrant an order for indemnity costs. The court dismissed Colgate's application for indemnity costs and ordered that the costs of the interlocutory application be paid by Colgate.

The court considered that the ACCC, as a regulator, was often required to pursue hard cases and cases based on circumstantial or highly contentious evidence or unsettled areas of law. The court held that it might reasonably be expected that regulators will lose some cases, sometimes emphatically, and that this should be taken into account when assessing whether an indemnity costs order against a regulator is warranted. The court found that the ACCC's action against Colgate was justified and reasonable in the circumstances, and that there were no grounds for departing from the usual rule that costs follow the event. The court dismissed Colgate's application for indemnity costs and ordered that the costs of the interlocutory application be paid by Colgate.