Australian Competition & Consumer Commission v Wizard Mortgage Corporation Limited

REASONS FOR JUDGMENT 1 On 25 October 2002 I granted the declaratory and injunctive relief sought by the respondent ("the ACCC") but refused to grant the additional injunctive relief sought by the ACCC in relation to corrective advertising and the implementation of a trade practices compliance program. At [29] of my reasons for judgment ([2002] FCA 1317) I concluded that, although the ACCC had not obtained all the relief it sought, it had obtained declaratory and injunctive relief and, in the usual course of events, costs should follow the event. However, as the respondent requested the opportunity to file written submissions as to costs I refrained from making any orders as to costs. 2 The ACCC and the respondents have now filed written submissions as to costs. The respondent claims that in June 2002 it had made a "without prejudice" offer, save as to costs, to settle the proceeding on the basis of the grant of declaratory relief and injunctions which were similar to those ultimately granted by the Court, and the ACCC rejected that offer. 3 The ACCC claims that the injunction offered by the respondent was different in significant respects to that which was ordered by the Court and therefore there is no basis for the respondent's contention that the injunction it offered was substantially equivalent to the injunction sought by and granted to the ACCC. 4 The Court has a general discretion as to costs. In the present matter the ACCC was successful in achieving some of its claims but was unsuccessful in achieving the remaining claims. Although I indicated that in the usual circumstances I would order that costs should follow the event, a further circumstance has emerged. That circumstance is that the respondent made a genuine and reasonable endeavour to resolve the proceeding by making a without prejudice offer to consent to the grant of declaratory and injunctive relief prior to the trial. While the injunctive relief offered by the respondent differed in significant respects from that granted I doubt that the difference would have been a matter of difficulty between the parties. The real problem concerning a settlement was the ACCC's insistence on corrective advertising and the implementation of the trade practices compliance program, which the Court has refused to order. 5 I am of the view that it is appropriate that some provision be made in respect of costs as a consequence of the respondent's endeavours to resolve the issue of injunctive relief. In the circumstances, I propose to order that the respondent pay eighty percent of the applicant's costs of and incidental to the proceeding. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.