Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd (No 2)

[2018] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd (No 2) [2018] FCAFC 128

Appeal from:	Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2017] FCA 1047
File number:	VID 1043 of 2017
Judges:	ALLSOP CJ, JAGOT AND LEE JJ
Date of judgment:	14 August 2018
Catchwords:	COSTS – costs of appeal – appropriate apportionment
Cases cited:	Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96
Date of hearing:	Determined on the papers
Date of last submissions:	8 August 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Appellant:	Mr N Hopkins QC with Ms C Cunliffe
Solicitor for the Appellant:	Norton Rose Fulbright Australia
Counsel for the Respondent:	Mr N O’Bryan SC with Mr MJ Hoyne
Solicitor for the Respondent:	Mills Oakley

ORDERS

VID 1043 of 2017

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Appellant

AND:

LG ELECTRONICS AUSTRALIA PTY LTD

Respondent

JUDGES:	ALLSOP CJ, JAGOT AND LEE JJ
DATE OF ORDER:	14 AUGUST 2018

THE COURT ORDERS THAT:

1.The respondent pay 40% of the appellant’s costs of the appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 27 June 2018 the Full Court published its reasons for judgment in this matter: Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96. We concluded that the ACCC’s appeal should be allowed in part because LG, on two occasions, had contravened the ACL.

2. The ACCC seeks an order that LG pay 60% of its costs of the appeal on the basis of its partial success.  LG seeks an order that the ACCC pay its costs of the appeal because the ACCC succeeded in respect of only two alleged contraventions, amongst multiples. 

3. LG’s position on costs is unrealistic.  It is correct that the ACCC succeeded in respect of only two of the many contraventions pleaded.  Nevertheless, it succeeded.  That success can be seen as the relevant event.  It was unsuccessful, however, on major aspects of how it put its appeal.  A fair and just reflection of the success on the appeal and the rejection of significant arguments of the ACCC on the appeal, without being overly fixated by issues won and lost, would see a broad-brush estimate being made.  LG denied all contraventions.  It was wrong to do so.  The issues on which the ACCC succeeded were important, albeit of a factually confined nature.

4. We consider that LG should be ordered to pay 40% of the ACCC’s costs of the appeal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and Justices Jagot and Lee.

Associate:

Dated:       14 August 2018