Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 3) [2002] FCA 1294

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 3) [2002] FCA 1294

COSTS – where successful respondent had made offer of compromise which was rejected – where unsuccessful applicant was successful on some aspects of case– whether successful respondents entitled to costs incurred following rejection of offer of compromise on an indemnity basis – whether unsuccessful applicant's refusal of offer of compromise was unreasonable or imprudent – whether part of unsuccessful applicant's case was maintained in wilful disregard of available evidence or involved groundless contentions which unduly prolonged case – whether award of costs to successful respondents should be reduced to reflect fact they were unsuccessful on some aspects of case. EVIDENCE – whether "without prejudice" communications admissible on questions of costs – effect of s 131(2)(h) Evidence Act 1995 (Cth) on admissibility of "without prejudice" communications. Evidence Act 1995 (Cth): s 131(2)(h)

Bruinsma v Menczer (1995) 40 NSWLR 716, considered

Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128, considered Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 133, considered NMFM Property Pty Ltd v Citibank Ltd (No 2) (2000) 109 FCR 77, applied Colgate‑Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, referred to Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151, referred to Ruddock v Vadarlis (2002) 188 ALR 143, referred to Walker v Wilsher (1889) 23 QBD 335, referred to Rabin v Mendoza & Co [1954] 1 WLR 271, referred to Cutts v Head [1984] Ch 290, referred to Rodgers v Rodgers (1964) 114 CLR 608, referred to Rush Tompkins Ltd v Greater London Council [1989] AC 1280, referred to Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285, referred to Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40‑748, applied Australian Competition and Consumer Commission v Boral Limited (No 2) (2000) ATPR 41‑738, applied Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 2) [2001] FCA 1861; (2002) ATPR (Digest) 46-215, referred to Queensland Wire Industries Proprietary Limited v The Broken Hill Proprietary Company Limited (1989) 167 CLR 177, applied Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited [1999] FCA 1269, referred to