Sleiman v Kmart Australia Limited

In the matter of Sleiman v Kmart Australia Limited, the Australian Competition and Consumer Commission (ACCC) sought to recover costs incurred by the respondent in the conduct of the hearing. The ACCC had commenced proceedings against Kmart Australia Limited for breaches of the Australian Consumer Law, specifically in relation to misleading or deceptive conduct and false or misleading representations regarding the pricing of certain goods. The Federal Court was tasked with deciding whether the ACCC was entitled to recover the costs it had incurred during the proceedings.

The primary legal issue before the court was whether the ACCC, as a party to the proceedings, was entitled to recover costs from the respondent under section 113 of the Competition and Consumer Act 2010. This section allows for the recovery of costs by a complainant in certain circumstances, and the court was required to determine whether the conditions for such recovery were satisfied in this case. The court also needed to consider the appropriate quantum of costs to be awarded, if any.

The court held that the ACCC was not entitled to recover costs under section 113 of the Competition and Consumer Act 2010. The court found that the statutory criteria for such recovery had not been satisfied, and accordingly, the complaint was dismissed. The court further noted that the ACCC was required to pay the costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002. The court ordered that the parties were to agree on the reasonable costs within 60 days of the making of these orders, and in the event of a failure to reach an agreement, the costs were to be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

In summary, the Federal Court dismissed the complaint brought by the ACCC against Kmart Australia Limited and ordered the ACCC to pay the costs of the respondent relating to the conduct of the hearing. The court also provided for a mechanism to determine the reasonable costs if the parties were unable to reach an agreement.