Medical Benefits Fund of Australia Limited v Cassidy

[2004] FCAFC 35

FEDERAL COURT OF AUSTRALIA

Medical Benefits Fund of Australia Limited v Cassidy [2004] FCAFC 35

MEDICAL BENEFITS FUND OF AUSTRALIA LIMITED (ACN 000 057 590) v BRIAN CASSIDY CHIEF EXECUTIVE OFFICER OF AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
N 1090 OF 2002

MOORE, MANSFIELD AND STONE JJ
25 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1090 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MEDICAL BENEFITS FUND OF AUSTRALIA LIMITED (ACN 000 057 590) APPELLANT
AND:	BRIAN CASSIDY CHIEF EXECUTIVE OFFICER AUSTRALIAN COMPETITION AND CONSUMER COMMISSION FIRST RESPONDENT
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION SECOND RESPONDENT
JUDGES:	MOORE, MANSFIELD AND STONE JJ
DATE OF ORDER:	25 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appellant pay half of the first respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1090 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MEDICAL BENEFITS FUND OF AUSTRALIA LIMITED (ACN 000 057 590) APPELLANT
AND:	BRIAN CASSIDY CHIEF EXECUTIVE OFFICER AUSTRALIAN COMPETITION AND CONSUMER COMMISSION FIRST RESPONDENT
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION SECOND RESPONDENT
JUDGES:	MOORE, MANSFIELD AND STONE JJ
DATE OF ORDER:	25 FEBRUARY 2004
WHERE MADE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. This judgment concerns the costs in this appeal following the judgment of the Full Court of 16 December 2003 and costs of the hearing before the primary judge determined, in substance, on 9 September 2002. 

2. Before the primary judge, the then applicants (for convenience only the Australian Competition and Consumer Commission ‘ACCC’) had substantial but not complete success against Medical Benefits Fund of Australia Ltd (‘MBF’).  Nonetheless his Honour ordered, relevantly, that MBF pay ACCC's costs.  MBF has had some limited success in its appeal.  It was unsuccessful in its challenge to the primary judge's findings concerning liability in relation to the contentious television advertisements as well as the billboard advertisements.  It failed in its challenge to the primary judge's order requiring corrective advertisements be placed in newspapers.  It did, however, succeed in its challenge to the primary judge's order requiring corrective advertisements on television. 

3. MBF submits that an order should be made requiring it to pay one-third of ACCC's costs of its proceedings against MBF at first instance and on appeal.  The rationale for an order to that effect was as follows.  While before the primary judge ACCC succeeded in establishing liability in relation to the television advertisements and billboard advertisements, it failed to do so in relation to newspaper advertisements.  ACCC failed before the primary judge in securing significant parts of the relief it sought.  It was partially successful in the appeal (as just discussed).  The proceedings below and on appeal were prolonged by ACCC's claims against John Bevins Pty Ltd which ultimately failed…