FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v P.T. Garuda Indonesia Limited [2015] FCA 451

THE COURT ORDERS THAT:

1.    For the purposes of orders 2 and 3 below, all costs of the Respondent that were incurred with respect to issues or matters that were common to both the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Hong Kong and the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Indonesia are to be split evenly between the two cases.

2.    The Applicant is to pay the Respondent’s costs of the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Hong Kong.

3.    The Applicant is to pay 20% of the Respondent’s costs of the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Indonesia.

4.    The Respondent is to pay half the Applicant’s costs of and incidental to the application for costs heard on 4 February 2015.

5.    The Applicant is to pay the Respondent’s costs of proving the truth of any fact or the authenticity of any document which the Applicant had disputed in a Notice of Dispute served under r 22.02 of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 24 April 2015 I delivered reasons resolving the parties’ various costs arguments: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 14) [2015] FCA 378. I concluded that the Commission should pay Garuda’s costs on the usual basis in relation to the allegations made regarding Hong Kong but only 20% of its costs in relation to the allegations regarding Indonesia.

2    A further debate has arisen between the parties as to the treatment of costs incurred by Garuda which concerned claims which were common to both sets of allegations. An example of such costs would be those incurred by Garuda in advancing its contention that the Trade Practices Act 1974 (Cth) did not apply to international commercial aviation.

3    The Commission submits that costs of that kind should be evenly split between the cases in Hong Kong and Indonesia. Garuda argues, on the other hand, that an order that the Commission pay 20% of its costs in Indonesia and all of its costs in Hong Kong will suffice.

4    There is no doubt that Garuda’s proposed order reflects what I decided. It does, however, leave to the taxing officer the question of what split is to take place with respect to costs shared between the two different theatres of litigation. The Commission’s contention effectively determines that issue now on a 50-50 basis. I too think it is useful to resolve that issue now. The 50-50 split advanced by the Commission is appropriate and reflects a fair estimate of what was involved.

5    Apart from that issue, the parties were otherwise in agreement on the form that the balance of the orders should take. I therefore make the following orders:

(1)    For the purposes of orders 2 and 3 below, all costs of the Respondent that were incurred with respect to issues or matters that were common to both the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Hong Kong and the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Indonesia are to be split evenly between the two cases.

(2)    The Applicant is to pay the Respondent’s costs of the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Hong Kong.

(3)    The Applicant is to pay 20% of the Respondent’s costs of the case that the Applicant brought against the Respondent relating to alleged collusive behaviour in Indonesia.

(4)    The Respondent is to pay half the Applicant’s costs of and incidental to the application for costs heard on 4 February 2015.

(5)    The Applicant is to pay the Respondent’s costs of proving the truth of any fact or the authenticity of any document which the Applicant had disputed in a Notice of Dispute served under r 22.02 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    13 May 2015