Australian Competition & Consumer Commission v Amcor Printing Papers Group Ltd

REASONS FOR JUDGMENT 1 By a judgment delivered on 19 January 2000, I made orders dismissing the application against the four respondents remaining in the proceedings. As the judgment explains (par [3]), the proceedings against a fifth respondent ("Mr Roach") were terminated when the applicant ("the ACCC") was granted leave to discontinue the proceedings against him. The only issue that remains is the question of costs.

The Submissions 2 The parties have filed written submissions setting out the orders they seek. Their submissions have attached the correspondence and other documents upon which they seek to rely. None of the parties has objected to this sensible approach, which avoids the need for a further hearing. 3 The ACCC accepts that, given that the application has been dismissed against four of the respondents and discontinued against a fifth, it is appropriate that an order be made requiring it to pay the costs of each of the respondents. However, the ACCC submits that there is no basis for a departure from the general rule that costs should be paid on a party and party basis. 4 Mr Roach seeks an order that his costs be paid on an indemnity basis. He submits that the proceedings should never have been commenced against him, as there never was any evidence to support the pleaded claim that he was knowingly concerned in or party to a contravention by the first respondent ("Amcor") of s 45(2)(b)(i) of the Trade Practices Act 1974 (Cth) ("TP Act"). Alternatively, Mr Roach seeks an order for indemnity costs as from two alternative dates when (so he argues) the ACCC should have terminated the proceedings or accepted so-called Calderbank offers to settle the proceeding on the basis that Mr Roach would bear his own costs. 5 Amcor and the third respondent ("Mr Nott") seek an order that their costs be paid on an indemnity basis as from 20 September 1999 or, alternatively, 3 December 1999. They rely on Calderbank offers to settle the proceedings on the basis that the ACCC would withdraw and they would bear their own costs. They say that the actual outcome has proved less favourable to the ACCC than would have been the position had either of the offers been accepted. They submit that it was unreasonable for the ACCC to have declined to accept the offers. 6 The second respondent ("Visy") and fourth respondent ("Mr Guthridge") are somewhat bolder. They submit that their costs should be paid on an indemnity basis because the action should not have been commenced or continued in circumstances where the ACCC, properly advised, should have known that it had no chance of success. Alternatively, they contend that the ACCC should pay their costs on an indemnity basis as from 29 September 1999 or, at the latest, 3 December 1999. Their alternative claim rests on the rejection by the ACCC of offers by them to pay their own costs if the ACCC agreed to discontinue the proceedings.