Australian Competition & Consumer Commission v Black on White [2002] FCA 1605

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Black on White [2002] FCA 1605

COSTS – discretion conferred upon Court by subs 43(2) Federal Court of Australia Act 1976 (Cth) is absolute and unfettered but must be exercised judicially, not arbitrarily or capriciously or upon grounds unconnected with litigation – Court must consider particular facts of the case before it – ordinary rule is that costs follow the event and a successful party will receive his/her costs in the absence of special circumstances justifying some other order – offer to settle – in assessing utility of offer, Court must consider whether offer is constructed in such a way as to constitute a reasonable basis for compromising or settling a proceeding and whether offer is genuine PRACTICE & PROCEDURE – Court can consider evidence of settlement negotiations where relevant to determining liability for costs – reference to parties in O 23 r 2 Federal Court Rules is a reference to the parties to the litigation, not to the persons on whose behalf the proceedings were instituted TRADE PRACTICES –proceedings initiated by Australian Competition and Consumer Commission for compensation for loss and damage to named third parties successful Trade Practices Act 1976 (Cth), s 87(1A), (1B); Part V Federal Court of Australia Act 1976 (Cth), s 43 Evidence Act 1995 (Cth), s 131(2)(h) Federal Court Rules, O 23 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 42 FLR 213, approved Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496, approved Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748, approved Ritter v Godfrey (1920) 2 KB 47, referred to Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586; [1975] 3 All ER 333, referred to Messiter v Hutchinson (1987) 10 NSWLR 525, referred to Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No. 2) [2000] FCA 602, approved Black v Lipovac [1998] FCA 699, considered Coshott v Learoyd [1999] FCA 276, considered Smallacombe v Lockyer Investments Co Pty Ltd (1993) 42 FCR 97, applied AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BLACK ON WHITE PTY LTD (ACN 061 507 248) trading as Australian Early Childhood College and OTHERS QG 110 of 1997 SPENDER J BRISBANE 20 DECEMBER 2002