Australian Competition & Consumer Commission v Optus Communications Pty Ltd

[1996] FCA 369

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 459 of 1995              GENERAL DIVISION                 )

BETWEEN:          AUSTRALIAN COMPETITION AND
  CONSUMER COMMISSION
  Applicant

AND:              OPTUS COMMUNICATIONS
  PTY LIMITED & ANOR
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       10 MAY 1996

REASONS FOR JUDGMENT

TAMBERLIN J:

In this matter I am persuaded that the costs in full should be awarded to the Australian Competition and Consumer Commission ("the Commission").  The principal issue in the case was whether there had been a misrepresentation on which the applicant was successful.  A declaration was made and an injunction was granted in exercise of discretion.  There were substantial arguments raised as to the exercise of discretion with respect to the grant of the injunction.  The Commission failed to obtain further consequential relief in the nature of corrective advertising.  This failure was substantially contributed to by the fact that there had been a lapse of time.

The respondent in resisting an application for costs, or alternatively, seeking an apportionment in relation to costs, refers to two letters written on 13 September 1995 in which an offer was made in relation to the final injunction to the effect that the respondent would, at the hearing, offer to the court without admissions a formal undertaking that it would include references in its advertising to certain exclusions.  It is said that as a result of this the necessity for continuing with the proceedings ceased and that this offer ought to have been accepted by the Commission.

The critical consideration in the present matter is that it is brought by the Commission in the assertion of and for the benefit of the public interest.  It seems to me that to offer an undertaking without any admissions to carry out certain acts, whilst in effect, at the same time denying any breach is quite inadequate in order to vindicate the public interest which I think is important in the present matter.

The normal rule is, of course, that costs follow the event.  The event has been that, in substance, the Commission has won and failed only on one aspect of consequential relief.  I think that in all the circumstances the matter is one in which the normal rule should apply. There should be no apportionment. Accordingly, I make an order that the respondent pay the applicant's costs in full in relation to all the issues canvassed at the hearing.

I certify that this and
the preceding two (2)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  10 May 1996  

Counsel for Applicant:               Ms H Coonan  

Solicitor for Applicant:                   Australian Government Solicitor

Counsel for Respondent:               Mr P Brereton  

Solicitor for Respondent:             Minter Ellison

Date of Hearing:  10 May 1996               

Date Judgment Delivered:                   10 May 1996