Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2020] FCA 598

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2020] FCA 598 Related matter: Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83

File number: NSD 202 of 2018

Judge: BROMWICH J

Date of judgment: 06 May 2020

Catchwords: COSTS – application for indemnity costs by successful second respondent Colgate-Palmolive Pty Ltd against unsuccessful appellant regulator Australian Competition and Consumer Commission – whether the Commission, properly advised, should have known that the appeal was bound to fail and therefore it was unreasonable to have commenced or continued it – whether the Commission failed to challenge four sets of factual findings and whether challenging those findings was indispensable to the appeal succeeding, viewed prospectively – whether an offer of compromise was genuine and sufficiently clear – whether the Commission unreasonably failed to accept an offer of compromise – application dismissed.

Legislation: Competition and Consumer Act 2010 (Cth) Evidence Act 1995 (Cth) s 76(1) Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ab), 37M, 37N, 43 Federal Court Rules 2011 (Cth) rr 25.01, 25.14, 40.02

Cases cited: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2005] FCA 860 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590; 353 ALR 460 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844; (2007) ATPR 42-200 Australian Competition and Consumer Commission v Oceana Commercial Pty Ltd [2004] FCAFC 174 Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684 Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; 138 ACSR 459 Barnes v Forty Two International Pty Limited (No 2) [2015] FCAFC 19 De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Enerka Apex Belting Pty Ltd v Vickers Systems Pty Ltd (No 2) [2002] VSC 409 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Grbavac v Hart [1997] 1 VR 154 Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 Hamod v New South Wales (2002) 188 ALR 659 Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; 46 IR 301 Kingsheath Club of the Clubs Limited (In liq) [2003] FCA 1589 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141 LFDB v SM (No 2) [2017] FCAFC 207 Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115; 217 ALR 175 Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 4) [2017] FCA 120 Seven Network Ltd v News Ltd [2009] FCAFC 166; 182 FCR 160 Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd (No 2) [2013] FCA 807 Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 5 ALR 465 Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 Tradestock v TNT (Management) (1978) 32 FLR 420 at 432-433; (1978) 1 ATPR 40-056 TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 1200