Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2005] FCA 860

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2005] FCA 860 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BAXTER HEALTH CARE PTY LTD AND ORS NSD 1153 of 2002 ALLSOP J 29 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1153 of 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: BAXTER HEALTHCARE PTY LTD

FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA

SECOND RESPONDENT

THE STATE OF SOUTH AUSTRALIA

THIRD RESPONDENT

THE STATE OF NEW SOUTH WALES

FOURTH RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 29 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant pay the first respondent's costs, other than the costs of the argument as to costs. 2. Each of the applicant and the first respondent pay its own costs of the argument as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1153 of 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: BAXTER HEALTHCARE PTY LTD

FIRST RESPONDENT

THE STATE OF WESTERN AUSTRALIA

SECOND RESPONDENT

THE STATE OF SOUTH AUSTRALIA

THIRD RESPONDENT

THE STATE OF NEW SOUTH WALES

FOURTH RESPONDENT

JUDGE: ALLSOP J

DATE: 29 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I published my reasons in this matter on 16 May 2005. The parties have considered the reasons and issues of confidentiality. The reasons have now been distributed as not confidential. 2 I have made an order providing that the applicant pay the costs of the second, third and fourth respondents of the proceedings. 3 Each of the applicant and the first respondent seeks a variation to the usual order for party/ party costs. The first respondent seeks costs on a party/ party basis up to 23 December 2002 (being the date of the delivery of an offer of compromise) and indemnity costs thereafter. The applicant resists that course and also, for itself, seeks a variation to the usual order, to the effect that the applicant should not pay the first respondent's costs on the question of market definition, and that the first respondent should pay the applicant's costs in relation to the question of market definition from the time of the filing of the defence or from 29 August 2003. 4 The parties have filed careful and detailed submissions. They will remain on the file. I do not propose to deal with all aspects of them and all authorities referred to therein. Nevertheless, I am grateful to counsel for their assistance. I have sought to deal with the essence of the submissions in these reasons.