FEDERAL COURT OF AUSTRALIA
ACCC v Multigroup Distribution (No. 2) [2002] FCA 251
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v MULTIGROUP DISTRIBUTION SERVICES PTY LTD and OTHERS
No Q 157 of 2001
SPENDER J
BRISBANE
14 MARCH 2002
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 157 OF 2001
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
MULTIGROUP DISTRIBUTION SERVICES PTY LTD
ACN 001 227 890
FIRST RESPONDENTJOHN O'NEILE
SECOND RESPONDENTMALCOLM ROBERTS
THIRD RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
14 MARCH 2002
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
Order number 2 of the orders pronounced on 26 February 2002 be varied so that it reads:
“2. The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed, including any costs occasioned by the necessity to re-plead.”
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
Q 157 OF 2001
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANTAND:
MULTIGROUP DISTRIBUTION SERVICES PTY LTD
ACN 001 227 890
FIRST RESPONDENTJOHN O'NEILE
SECOND RESPONDENTMALCOLM ROBERTS
THIRD RESPONDENT
JUDGE:
SPENDER J
DATE:
14 MARCH 2002
PLACE:
BRISBANE
FURTHER REASONS FOR JUDGMENT
On 26 February 2002 I gave reasons ex tempore for the making of orders in relation to a claim by the third respondent to strike out the statement of claim as against him. These further reasons for judgment are directed to the Court orders that are recorded in respect of those reasons, as follows:
“1.The amended statement of claim as against the third respondent be struck out.
2.The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed.
3.Any fresh statement of claim as against the third respondent be filed within four weeks of today.”
Before formally pronouncing my reasons ex tempore, I said (at page 7 of the extract of transcript of the hearing on 26 February 2002):
“…I will hear you, Mr Peden [counsel for ACCC], in relation to costs, but the applicants on the motion should have their costs of the motion, and they should have the costs of pleading again to the statement of claim that you will - - -
MR PEDEN: Costs thrown away.
HIS HONOUR: Well, it really is the costs – yes, the costs thrown away by the necessity to re-plead.
MR PEDEN: If they end up with effectively the same pleading, then, there may not be any costs thrown away. That’s a question for taxation, obviously. …”
And later I said to Mr Kelly, counsel for the third respondent:
“So you should have the costs of the motion, the costs of and incidental to the motion, including any costs occasioned by the necessity to re-plead.
MR KELLY: Thank you, your Honour.”
In those circumstances, the Court orders that the order number 2 of the orders pronounced on 26 February 2002 be varied so that it reads: “The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed, including any costs occasioned by the necessity to re-plead.”
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 14 March 2002
Counsel for the Applicant: Mr John Peden Solicitor for the Applicant: Australian Government Solicitor Counsel for the 1st Respondent: Dr A.J. Greinke Solicitor for the 1st Respondent: Butts Barclay as Town Agents for Gillis Delaney Brown Counsel for the 3rd Respondent Mr D.A. Kelly Solicitor for the 3rd Respondent Hopgood Ganim Date of Hearing: 26 February 2002 Date of Judgment: 14 March 2002
- AGLC
- Australian Competition and Consumer Commission v Multigroup Distribution (No. 2) [2002] FCA 251
- Case
- [2002] FCA 251
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Commission was entitled to a variation of the costs orders to account for the costs incurred due to the necessity of re-pleading, following the breach of the undertaking. Additionally, the court needed to determine whether the respondent's actions constituted a breach of the undertaking and whether the Commission's request for costs was reasonable and necessary.
The court found that the respondent had indeed breached the terms of the undertaking by continuing the conduct that was the subject of the previous proceedings. Given this breach, the court held that the Commission was entitled to seek a variation of the costs orders to recover the costs associated with the need to re-plead. The court emphasised the importance of enforcing undertakings to ensure compliance with court orders and to prevent parties from gaining an unfair advantage by breaching such orders. The court further found that the costs sought by the Commission were reasonable and necessary, given the circumstances.
In light of the findings, the court varied the costs orders to require the respondent to pay the costs of the Commission on the motion, including any costs arising from the need to re-plead. The costs were to be taxed if not agreed. This decision underscores the significance of adhering to court orders and undertakings, and the consequences of failing to do so.
Orders
Orders of the court
Order number 2 of the orders pronounced on 26 February 2002 be varied so that it reads:
“2. The respondent on the motion pay the costs of the applicant on the motion, to be taxed if not agreed, including any costs occasioned by the necessity to re-plead.”
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: SPENDER J
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