Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246

Federal Court of Australia

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246 File number: NSD 2510 of 2013

Judgment of: WIGNEY J

Date of judgment: 19 March 2021

Catchwords: COSTS – Application for indemnity costs by successful respondent against applicant – where applicant, the Australian Competition and Consumer Commission, is a regulator – relevant principles regarding order for costs – whether Court should exercise its discretion to award costs other than on a party and party basis – whether ACCC should have been aware that its proceeding was "hopeless" and "bound to fail" before commencing proceeding – whether ACCC's action against respondent was justified and reasonable in the circumstances – whether action against respondent was a circumstantial case where strength or weakness of proceeding could only be assessed once entire evidence had been presented – where litigation involved public interest – where ACCC had previously settled with other respondents in the proceeding also alleged to have engaged in collusive arrangements in contravention of Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010 (Cth)) – order for indemnity costs not warranted – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth), rr 40.01, 40.02(a), 40.02(b), Sch 1 Trade Practices Act 1974 (Cth) (repealed), ss 45(2)(a)(i)-(ii), 45(2)(b)(i)-(ii), 44ZZRK

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 (No 4) (2017) 353 ALR 460; [2017] FCA 1590 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2020] FCA 598 Australian Competition and Consumer Commission v Leahy Petroleum Pty Limited [2007] FCA 1844 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684 1 Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 Hamod v New South Wales (2002) 188 ALR 659; [2002] FCAFC 97 Henke v Carter [2002] FCA 492 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 Kazal v Independent Commission Against Corruption and Ors (No 2) [2020] NSWSC 17 King v Yurisich (No 2) [2007] FCAFC 51 Latoudis v Casey (1990) 170 CLR 534 LFDB v SM (No 2) [2017] FCAFC 207 Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352 Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 Re Kingsheath Club of the Clubs Ltd (in liq) [2003] FCA 1589 Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166 Smolle v Australian and New Zealand Banking Group Ltd (No 2) [2007] FCA 1967 Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685