Jones v Australian Competition and Consumer Commission

REASONS FOR JUDGMENT THE COURT: 1 On 5 August 2003 orders were made disposing of this appeal save and except for an order concerning the proper order for costs in respect of proceedings below. 2 From the terms of the reasons of the primary judge it was not clear to us that the point which succeeded on appeal had been clearly taken, albeit that it had been clearly made to the ACCC at the time of its authorisation considerations. Further, issues were debated before the primary judge, in particular the question of apprehended bias, which were not the subject of appeal. 3 In these circumstances we called for submissions from the parties as to the proper order for costs below. 4 From the material which has been filed it is evident that the fundamental point of the appellant which was successful on appeal was put to the primary judge. However, it is also apparent that there was a significant body of material before the primary judge and a real amount of costs incurred up to and during the first instance hearing which concerned the question of apprehended bias. 5 The ACCC submitted that the Court should order each party to pay his and its own costs of the proceedings below based on what was said in ACCC v Australian Safeway Stores Pty Ltd (No 2) [2003] FCAFC 163 at [6] where the Full Court said: Costs always remain a matter of discretion. Subject to that overriding consideration, the usual approach of courts has been that ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. Where a litigant has succeeded only partially, circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties costs of them: see Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136, Ruddock v Vadarlis (No 2) (2002) 115 FCR 229 at 234 [11]. 6 An important consideration to take into account in this case is that the successful appellant at all times maintained the very point which was successful on appeal. If that point had been recognised by the ACCC none of the costs would have been incurred. 7 Whilst we recognise that it is open in certain circumstances to distinguish issues upon which a party is successful and upon which it has failed, we think in all the circumstances in this case that no precise division should be made by us, particularly in the absence of our familiarity with the trial process. The matter was heard on one day before the primary judge, though, of course, significant time and cost would have been put into the matter by way of preparation. It may be that the primary judge is the better person to assess a proper division of these costs. However, we are most reluctant to force any further costs on the parties. 8 Taking into account the submissions of the parties and recognising that the bias argument was not really a "de minimis issue" as submitted by the appellant, we think it appropriate that the first respondent pay 75% of the costs of the applicant below, save and except that this order should not affect the order for costs made by Registrar Efthim on 15 February 2002 upon dismissing the applicant's notice of motion dated 5 February 2002 for discovery on the bias issue. 9 The orders of the Court will be: 1. The first respondent pay 75% of the costs of the appellant as applicant at first instance, such order not to affect in any way the order of Registrar Efthim made on 15 February 2002 that the appellant (as applicant) pay the costs of the first respondent of a notice of motion dated 5 February 2002 for discovery. 2. The order for costs of the appeal made as order 4 on 5 August 2003 is to cover the costs involved in this argument as to costs below. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Supplementary Reasons for Judgment herein of the Honourable Justices Wilcox, Cooper and Allsop.