Emirates v Australian Competition and Consumer Commission

REASONS FOR JUDGMENT 1 In the above proceedings the Court ordered that each application be dismissed. 2 Each applicant now sought orders that each party bear its own costs. 3 The respondents seek an order in accordance with ordinary rule that costs follow the event. 4 The applicants rely upon a number propositions: · The proceedings were brought reasonably, and raised issues of difficulty and complexity; · The operation of s 155 of the Trade Practices Act 1974 (Cth) ('the Act') was a matter of high public concern, and the characterisation of powers of ACCC was a matter of considerable general importance; · An essential step in the dismissal of each application was the construction of the Notices themselves upon which the respondents were not entirely successful; and · The applicants themselves were successful on various issues, and the respondents failed upon some of their primary arguments regarding the interpretation of the Act. 5 I do not regard the fact that the issues may have been difficult or complex, or gave rise to issues of public importance, as a sufficient basis to depart from the ordinary rule that costs follow the event. These proceedings involved an attack made by the applicants in respect of an investigation into their activities, an attack which proved unsuccessful. 6 Whilst I may take into account the circumstance that an applicant brings a proceeding to clarify the law (see, eg, Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [17]; and Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19), this case involved the applicants specifically seeking to set aside the Notices directly affecting them. The purpose of these proceedings was to have the Notices set aside. This object was entirely unsuccessful on the grounds both as to whether the Notices came within s 45 of the Act and on burden. 7 A number of issues were argued before the Court. The Court may make costs orders reflective of success on individual questions of fact and law: see Hughes v WA Cricket Association (Inc) (1986) ATPR 40-748; BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 and Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107. 8 In the past, the Full Court has cautioned against too ready a resort to apportionment according to issue based outcomes: see, eg, Australian Trade Commission v Disktravel [2000] FCA 62 at [3] (per French, Kiefel and Mansfield JJ), citing the decision of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 15. Justice Jocobs' observations, as set out by the Full Court, bear repeating: The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including, in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely upon his success in those particular issues. 9 More recently the Full Court emphasised the importance of fairness in the exercise of the discretion of the Court. 10 In Bowen Investments [2008] FCAFC 107 the Full Court said (at [3]-[5]): 3. We think there is force in the argument that the appellant should not benefit from the usual rule that costs follow the event. For many years the traditional rule has been that the winner (once the winner is properly identified) is entitled to recover his costs of the trial. It sometimes happens that there is a departure from the traditional rule and the costs order takes account of the success of the parties on particular issues. But to date the award of costs on an issue by issue basis has only been accepted in limited cases and then only when the circumstances are exceptional. 4. This approach is, if we may be permitted to say so, quite unfair. Its effect is that a winner is entitled to all of his costs even if he raises a plethora of issues on which he is unsuccessful. The unfairness of the traditional rule has been recognised in England where, following Lord Woolf's interim report, Access to Justice (June, 1995) [at para 25.22], the Civil Procedure Rules were modified to require the judge to have regard to the circumstance (if it occurs) that the unsuccessful party has succeeded on some issues: see r 44.3(4)(b). In Western Australia, the Supreme Court Rules provide that costs should follow the event of each pleaded cause of action: see r 66(2)(a). This is narrower than the English approach but certainly more reasonable than adherence to the traditional rule. 5. We do not believe there is any need to wait for a change in the Federal Court Rules to adopt an issue by issue approach here. Costs are in the court's discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. It is not suggested that such an approach requires a precise arithmetical apportionment of the costs as between the winner and loser of discrete issues. No doubt the assessment will often be rough and ready. But it will have the virtues of both fairness and reasonableness, which are often lacking in the application of the traditional rule. 11 I do not regard this as a case where fairness dictates that an 'issues' approach should be adopted. A number of different arguments were advanced, more by way of legal analysis than factual analysis, which were reasonably canvassed by the respondents. The canvassing of the issues said not to have been successfully argued by the respondents did not involve appreciably extra court time or expense than otherwise would have been necessary to have properly considered the many arguments put by the applicants. Any attempt to consider every issue (many of which overlapped) would involve 'a nit-picking exercise which would obscure and ignore the ultimate result': see Telstra Corporation Ltd v Australian Competition Tribunal (No 2) [2009] FCAFC 34 at [15]. 12 In substance, the applicants failed in their endeavour to set aside the Notices, the real object of these proceedings. 13 In my view, the appropriate order to make in each proceeding is that the applicant or applicants pay the costs of the respondent or respondents (including any reserved costs). I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.