CrownBet Pty Ltd v Australian Competition Tribunal

1. The applicant pay the respondents' costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 These reasons deal with the appropriate costs order to be made in the unsuccessful judicial review proceedings brought by the applicant, CrownBet Pty Ltd (CrownBet). 2 On 22 September 2017, we made orders dismissing CrownBet's application for judicial review: CrownBet Pty Ltd v Australian Competition Tribunal [2017] FCAFC 157. We had earlier given substantive reasons on the two judicial review applications heard together, one brought by the Australian Competition and Consumer Commission (ACCC) and the second brought by CrownBet: Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150. 3 CrownBet submitted that, in the unique circumstances of the case, the appropriate order was that there be no order as to costs or that any order requiring it to pay a contribution to the respondents' costs should be limited to a portion of those costs. The main circumstance on which CrownBet relied was that the ACCC had been successful in its judicial review application in respect of the same decision of the Australian Competition Tribunal and that CrownBet's ground 1 was similar to the ACCC's ground 1, which had succeeded. 4 The second respondent, Tabcorp Holdings Limited (Tabcorp), submitted that CrownBet should pay its costs on the basis that CrownBet failed on all its grounds and its application was dismissed. Tabcorp submitted there was no reason to displace the conventional position that costs follow the event: CrownBet was not a necessary party to the ACCC's case and its presence was not required to enable the Court to reach the conclusion reached on the ACCC's application. Mere similarities between CrownBet's case and the ACCC's case on ground 1 did not gainsay the dismissal of CrownBet's application. Crownbet should not be in any different position simply because its case was heard with the ACCC's case. Tabcorp also pointed in particular to CrownBet's ground 4, alleging irrationality, which Tabcorp submitted added materially to the scope of the evidence and submissions necessary for the conduct of the hearing. 5 The third respondent, Tatts Group Limited (Tatts) also sought its costs of the proceedings on the basis that as a matter of both form and substance, the "event" for costs purposes was a failure by Crownbet to make good any entitlement to relief, in circumstances where there was no reason to refrain from making the usual order as to costs. Tatts submitted CrownBet lost all four grounds it advanced. 6 In our opinion, substantially for the reasons we gave in making the order on 22 September 2017 that CrownBet's application be dismissed, the appropriate order is that CrownBet pay the respondents' costs. We then said, CrownBet Pty Ltd v Australian Competition Tribunal at [2]: … In substance, CrownBet was seeking to argue that it should be granted relief because the Tribunal had overlooked part of the ACCC's case. Had CrownBet's case in this Court been heard separately from the ACCC's it would have failed. CrownBet can be in no better position just because its case was heard at the same time as the ACCC's. We also accept the respondents' submission that CrownBet was not a necessary party to the ACCC's case and its presence was not required to enable the Court to reach the conclusion it reached on the ACCC's application. Further, we agree that mere similarities between CrownBet's case and the ACCC's case on ground 1 did not gainsay the dismissal of CrownBet's application. While CrownBet's ground 1 was in similar terms to the ACCC's, the circumstances of those two parties were different. 7 For these reasons, we order that CrownBet pay the costs of the respondents, as agreed or taxed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Perram & Robertson.