FEDERAL COURT OF AUSTRALIA

Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited (No 2) [2015] FCA 477

THE COURT DECLARES THAT:

1.    By broadcasting the Flickering Advertisement (as defined in the Second Further Amended Statement of Claim para 17) in May and June 2011, the respondent has engaged in conduct that is misleading and deceptive and likely to mislead and deceive, and has made misleading and deceptive representations, in breach of ss 18 and 29 of the Australian Consumer Law.

2.    By distributing the Retailer Instructions (as defined in the Second Further Amended Statement of Claim para 42(c)) during March and July 2011, the respondent has engaged in conduct that is misleading and deceptive and likely to mislead and deceive, and has made false and misleading representations, in breach of ss 18 and 29 of the Australian Consumer Law.

THE COURT ORDERS THAT:

1.    The respondent be restrained, whether by its servants, agents or otherwise, from engaging, in trade or commerce, in any of the following conduct:

(a)    representing to members of the public that many people experience dizziness or nausea when watching conventional 3D television using active shutter glasses;

(b)    representing to members of the public that LG Cinema 3D TV uses technology which eliminates or reduces the risk of a viewer experiencing dizziness or nausea;

(c)    representing to members of the public that the risk of people experiencing dizziness or nausea when viewing 3D television is greater in the case of conventional 3D TVs using active shutter technology than it is for LG Cinema 3D TVs using film patterned retarder (or FPR) technology;

(d)    representing to members of the public that a viewer of conventional 3D TVs has to sit upright to view it in 3D; or

(e)    representing to members of the public that LG Cinema 3D TVs generate a viewable image up to two times brighter than the viewable image generated by conventional 3D TVs.

2.    The applicant pay 50% of the respondent’s costs of the proceeding to date including any reserved costs but excluding any costs the subject of any other previous costs order.

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

REASONS FOR JUDGMENT

Introduction

1    In my reasons for judgment published on 16 March 2015 (Reasons) I concluded that the respondent engaged in misleading and deceptive conduct in the course of advertising and promoting its range of LG Cinema 3D TVs. In particular, I upheld aspects of the applicant’s case based upon what are referred to in my Reasons as the Flickering TVC and the Retailer Instructions.

2    There are a number of matters that remain to be decided. Shortly stated:

    Should declarations be made?

    Should injunctive relief be granted?

    Should there be an order for corrective advertising?

    Who should pay the costs of the proceeding and in what proportion?

Declaratory Relief

3    The declarations sought by the applicant are as follows:

(1)    By broadcasting the Flickering Advertisement (as defined in SFASOC para 17), the Respondent has engaged in conduct that is misleading and deceptive and likely to mislead and deceive, and has made false and misleading representations, in breach of ss 18 and 29 of the Australian Consumer Law.

(2)    By distributing the Retailer Instructions (as defined in SFASOC para 42(c)), the Respondent has engaged in conduct that is misleading and deceptive and likely to mislead and deceive, and has made false and misleading representations, in breach of ss 18 and 29 of the Australian Consumer Law.

4    The respondent submitted that a declaration is a discretionary remedy which should not be awarded in this case. In particular, it was submitted that the declarations sought by the applicant are of no utility given that the conduct complained of occurred almost four years ago and that the issue has become academic.

5    I do not accept the respondent’s submission. It is clear that the Court may grant a declaration even though the contravening conduct has ceased. In cases involving false or misleading advertising, a declaration (particularly if no injunction is sought or granted) will often be the most appropriate form of relief.

6    The respondent also submitted that if the Court was minded to grant declaratory relief then it was appropriate to narrow the declarations proposed by the applicant so that it included a reference to the time at which the contravening conduct occurred. I accept this submission. I propose to make declarations in the terms sought by the applicant subject to the modifications proposed by the respondent and subject to the further qualification that the words “misleading and deceptive” be substituted for the words “false and misleading” in the first of the proposed declarations. This will ensure that the terms of the first declaration reflect my actual findings (see Reasons [134] and [303]).

Injunctive Relief

7    The injunctive relief sought by the applicant is as follows:

(1)    The respondent whether by its servants, agents or otherwise, permanently refrain from broadcasting or causing to be broadcast the Flickering Advertisement in Australia.

(2)    The respondent whether by its servants, agents or otherwise, permanently refrain from distributing or causing to be distributed the Retailer Instructions in Australia.

(3)    The Respondent whether by its servants, agents or otherwise, permanently refrain from making in Australia representations to the effect of the representations set out in paragraphs 18(b), (c), (d), and (f) and 48(a), (c), (d), and (g) of the SFASOC.

8    The respondent opposed the grant of any final injunctive relief on the ground that there is no evidence to suggest that there is any likelihood that the contravening conduct will be repeated. The respondent submitted that the contravening conduct ceased almost two years prior to the hearing of the proceeding and that there is nothing to suggest that it will be repeated now that judgment has been delivered.

9    In support of its submission the respondent referred me to a number of decisions in which judges of this Court declined to grant final injunctions under s 80 of the Trade Practices Act 1974 (Cth) (TPA) in circumstances where there was no evidence to suggest that there would be a repetition of the contravening conduct. Particular reliance was placed upon the judgments of Perram J in Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (2010) 267 ALR 721 at [41] and Buchanan J in Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305 at [56].

10    Section 232 of the Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) (ACL) makes plain (as did s 80 of the TPA) that an injunction may be granted under that section whether or not it appears to the court that the person intends to engage again, or to continue to engage, in the relevant conduct: see subss 232(1) and (4) of the ACL and subss 80(1) and (4) of the TPA. In particular s 232(4) of the ACL provides:

The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:

(a)    whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and

(b)    whether or not the person has previously engaged in conduct of that kind; and

(c)    whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

11    The Full Court’s reasons in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (Lockhart, Gummow and French JJ) (ICI Australia) include a detailed analysis of the law relating to the grant of injunctive relief under s 80 of the TPA. As Lockhart J (with whom French J generally agreed) pointed out, subss (4) and (5) of s 80 (which correspond to subss (4) and (7) of s 232 of the ACL), were novel in that they were designed to ensure that if the condition precedent to the exercise of the power to grant injunctive relief under s 80(1) was satisfied, the Court would be given (at p 256):

… the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.

12    Having referred to “[t]he public interest character of s 80”, Lockhart J went on to point out that, notwithstanding that the provisions of subss (4) and (5) permit an injunction to be granted whether or not there appears to be any likelihood of a future contravention, the likelihood of future contravention is a relevant factor to be taken into account when deciding whether or not to grant an injunction. After referring to authority in support of that proposition, his Honour said at pp 256-257:

Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45), the misuse of market power (s 46), the practice of exclusive dealing (s 47), resale price maintenance (s 48), price discrimination (s 49), anti-competitive mergers (s 50) and unfair practices with respect to consumers (Pt V). These are legislative enactments of matters vital to the presence of free competition and enterprise and a just society. This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions.

13    His Honour went on to reject a submission to the effect that the court was bound to grant an injunction in every case in which a contravention of the relevant statutory provision was proven on the basis that it was inconsistent with the statutory language including, in particular, the language of s 80(1). As to subss (4) and (5) of s 80, his Honour added at pp 257-258:

The terms of subss (4) and (5) of s 80 deny the correctness of this construction; for, taken to its logical conclusion, it would mean that once a contravention of the Act has been established an injunction must be granted, unless the court determines otherwise, notwithstanding that the defendant has not engaged in conduct of that kind before or does not intend to engage in it again.

So radical a departure from the essential nature of injunctive relief can be supported only if the language of the section plainly leads to that result or perhaps if the purpose of the provision so requires it; though legislative purpose must be gleaned essentially from the language of the provision itself in the context of the Act as a whole. The object of granting an injunction pursuant to s 80 is to restrain a person from engaging in prohibited conduct. To require, rather than permit, the court to grant an injunction once the prohibited conduct has been proved could deny the court its capacity to formulate the appropriate remedy to suit the needs of the case and could be productive of injustice. The evident intent of s 80 is to place the weapon of an injunction in the discretionary armoury of the court together with the award of damages and wide ranging orders of the kind specified in s 87.

14    Referring again to subss 80(4) and (5), Gummow J observed at p 267:

They provide that the power of the court to grant prohibitory and mandatory injunctions may be exercised in circumstances where, under the general law, there ordinarily would be a good answer to an application for injunctive relief. There may have been no previous infraction of the law, there may be no threat of any infraction or further infraction of the law, and there may be no imminent danger of substantial damage by the act or omission of the defendant.

15    The judgments in ICI Australia were referred to at length and with approval by the Full Court in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 (Dataline) at [100]-[106]. The passages referred to by the Full Court included those passages in the judgments of Lockhart J and Gummow J to which I have referred.

16    In Dataline the primary judge granted injunctive relief against the respondent but not in the terms sought by the appellant. The principal question that arose in Dataline was not whether any injunctive relief was appropriate, but whether the primary judge was justified in refusing to grant the form of the injunctive relief that had been sought by the appellant. That is not the question with which I am presently concerned. Nevertheless, in the course of its judgment the Full Court said at [108], [111] and [114]:

[108]    … In many, perhaps most cases, the possibility of future misconduct will be the underlying rationale for injunctive relief. In all cases the width of the relief will reflect the state of the evidence, including reasonable inferences which may be drawn from it. That is not to overlook the power to grant injunctive relief in the absence of any threatened future misconduct. Prevention of future misconduct may be the most common reason for granting injunctive relief, but there may be other reasons. The likely severity of the consequences of an improbable future breach may be an example.

…

[111]    Many contraventions simply will not justify injunctive relief. We doubt whether unintentional misconduct in contravention of s 52 would lead to such relief. An isolated intentional breach may also not warrant it. Conduct which occurred many years before the enforcement proceedings may not do so, especially if the offender has not recently infringed the law, or is no longer in a position where contravention is likely. These are obvious cases, but they raise questions as to the relevant factors in considering whether to grant such relief. The discretion is at large. It is for the relevant applicant to demonstrate that the injunction will serve a purpose. That purpose may involve the protection of the public interest or private rights.

[114]    The experience of the law is that unlawful or illegal conduct does not lead to an injunction against repetition of such conduct being sought or granted. A range of other remedies exist in the civil and criminal law which are treated as adequate and appropriate sanctions for such conduct. Normally, it is only where there is a real risk of further misconduct that injunctive relief is contemplated. It is, we think, no answer to this experience to say that subss (4) and (5) provide that absence of any threat of further contravention is no longer a bar to the grant of such relief. An injunction should not be seen as a necessary vindication of the applicant’s conduct in bringing the proceedings. Other relief may better serve that purpose. Nor should an injunction be sought primarily for public relations purposes, however worthy such purposes may be.

17    In every case it will be for the applicant to satisfy the Court that there should be a grant of injunctive relief. The Full Court judgment in Dataline provides some illustrations of circumstances in which it may not be appropriate to grant an injunction. However, as the authorities make clear, the discretion is at large, though, as with any judicial discretion, it must be exercised judicially and for a proper purpose. As to what is a proper purpose, other authorities indicate that an injunction may be granted to mark the court’s disapproval of the respondent’s contravening conduct. This purpose is likely to be particularly relevant in circumstances where the contravening conduct has a public interest element: see Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 300 per Toohey J (cited by Lockhart J in ICI Australia at 255) and Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491. In the latter case, Selway J said at [217]:

The purpose of an appropriately drafted injunction may be merely to reinforce to the market place that the restrained behaviour is unacceptable. A declaration may achieve the same result, but so long as it is otherwise appropriate that is no reason why an injunction should not also be made if it is in the public interest (as so understood) to do so. On this basis an injunction could still be made where (as here) there was little likelihood that the respondents might engage in the restrained behaviour.

This paragraph of his Honour’s reasons was referred to with approval by Black CJ and Finkelstein J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at [24].

18    Plainly, it would be wrong to approach the question whether there should be a grant of injunctive relief on the basis that the court should only grant such relief if it is satisfied that the respondent is likely to engage in a repetition of the contravening conduct. The absence of evidence establishing that the respondent is likely to engage in such conduct is a relevant consideration but is certainly not fatal to the claim to injunctive relief.

19    There are a number of factors which lead me to think it is appropriate to grant injunctive relief in this case.

20    First, the representation to the effect that people who watch conventional 3D television experience side effects (in particular, dizziness) was a representation which had the potential to cause the applicant’s business significant harm. Moreover, the representation was one which the respondent made intentionally, and without reasonable grounds. While I accept that it was open to the respondent to argue (as it did) that this representation was not conveyed by the Flickering TVC, no such argument could be advanced by the respondent in relation to the Retailer Instructions because they contained an express representation to that effect.

21    Secondly, the respondent distributed the Retailer Instructions during March and July 2011 (Reasons [190]). It is significant that the respondent distributed the Retailer Instructions after the interlocutory hearing on 18 May 2011 at which it gave an undertaking to the Court in respect of the Flickering TVC, and at a time when it was on notice that the applicant contended that there was no reasonable basis for the “dizziness” representation or any representation to a like effect. It must have been apparent to the respondent at least by the time of that hearing that the Retailer Instructions included a serious misrepresentation as to the side effects (“dizziness and even nausea”) associated with viewing conventional 3D TV. Presumably the applicant did not seek any interlocutory relief from Rares J in relation to the Retailer Instructions either because the applicant did not know of their existence until much later or because it was preoccupied with the much larger problem posed by the respondent’s television campaign. In any event, the distribution of the Retailer Instructions by the respondent in July 2011 was opportunistic to say the least.

22    Thirdly, the representations conveyed by the Flickering TVC and the Retailer Instructions relate to a range of 3D televisions that employs film patterned retarder (FPR) technology, which the respondent continues to market in competition with conventional 3D TVs made by the applicant and other well-known manufacturers. Such representations were made by the respondent intentionally as part of what its parent company (LG Korea) described in the respondent’s internal documents as a “generation war” between the respondent’s passive 3D technology and the conventional 3D technology used by the applicant and other manufacturers.

23    The fact that I have found that the relevant representations were made intentionally, and without reasonable grounds, and that I am also satisfied that they relate to matters of continuing relevance in the market place are matters to which I give significant weight in deciding whether or not to grant injunctive relief.

24    Even if the risk of the respondent engaging in any repetition of its contravening conduct is only slight, I think it is nevertheless appropriate to grant injunctive relief. Given the seriousness of the damage that could be inflicted on the applicant (not to mention other manufacturers) if the respondent was to repeat its misleading and deceptive representations, I think it preferable that the court do what it can to eliminate that risk. Moreover, in this case the making of injunctions in appropriate terms is also a suitable means with which to mark the court’s disapproval of the respondent’s contravening conduct.

25    Mr Hall SC, who appeared for the respondent, criticised the form of the injunctive relief proposed by the applicant on the basis that it drew upon defined terms not incorporated in the proposed order. I agree with that criticism.

26    The injunctive relief I propose to grant is as follows:

The respondent be restrained, whether by its servants, agents or otherwise, from engaging, in trade or commerce, in any of the following conduct:

(a)    representing to members of the public that many people experience dizziness or nausea when watching conventional 3D television using active shutter glasses;

(b)    representing to members of the public that LG Cinema 3D TV uses technology which eliminates or reduces the risk of a viewer experiencing dizziness or nausea;

(c)    representing to members of the public that the risk of people experiencing dizziness or nausea when viewing 3D television is greater in the case of conventional 3D TVs using active shutter technology than it is for LG Cinema 3D TVs using film patterned retarder (or FPR) technology;

(d)    representing to members of the public that a viewer of conventional 3D TVs has to sit upright to view it in 3D; or

(e)    representing to members of the public that LG Cinema 3D TVs generate a viewable image up to two times brighter than the viewable image generated by conventional 3D TVs.

27    Mr Hall SC submitted that subpara (c) reflects a case that was not argued. I do not accept that submission. Subpara (c) reflects at least one way in which the applicant’s case was argued and my acceptance of that argument in my reasons for judgment (Reasons [134]).

Corrective Advertising

28    The applicant sought an order under s 232(1) requiring the respondent to distribute a corrective notice to each retailer to whom the respondent distributed a copy of the Retailer Instructions. The proposed notice would inform the recipients of the outcome of this proceeding and, in particular, of the representations contained in the Retailer Instructions which were held to be incorrect.

29    In its pleadings the respondent admitted to having distributed the Retailer Instructions to certain retailers during March and July 2011. However, the evidence as to the scale of the distribution that took place during March and July 2011 was scant. Further, there was no evidence to indicate that copies of the Retailer Instructions were distributed at any other time.

30    There appear to be only two examples of the Retailer Instructions in evidence. The first is part of a bundle of promotional material prepared for Harvey Norman. The second is in a similar bundle prepared for Myer. Curiously, the second example does not include that part of the Retailer Instructions that contains the “dizziness” representation. In light of the respondent’s admission (see Reasons [190]), that discrepancy can be ignored.

31    Having considered these documents again, and the evidence given by Mr Kim and Dr Downes in relation to them, it seems unlikely that they would be of much interest to retailers once the LG Campaign had finished. Mr Kim gave evidence that the Retailer Instructions were used for training purposes. Dr Downes’ evidence was that the Retailer Instructions were intended to be used to promote sales of the LG Cinema 3D TVs to customers who had seen one or more of the television commercials. I am not satisfied the Retailer Instructions are likely to have been used by retailers at any time beyond late 2011 or early 2012 after the LG Campaign had run its course.

32    The factors relevant to the question whether an order for corrective advertising should be made were considered by Stone J (with whom Moore and Mansfield JJ agreed) in Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1. As her Honour observed at [58], the effluxion of time will have a bearing on the utility of orders for corrective advertising. I am not persuaded that there would be any utility in making any such order in this case.

Costs

33    The difference between the parties as to what they submitted is the appropriate order for costs is considerable. The applicant submitted that the respondent should pay 50% of the applicant’s costs of the proceeding whereas the respondent submitted that the applicant should pay 85% of the respondent’s costs.

34    The award of costs is in the discretion of the Court: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In Gray v Richards (No 2) (2014) 315 ALR 1 the High Court said at [2]:

The disposition of costs is within the general discretion of the court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the court [Stewart v Atco Controls Pty Ltd (In liq) (No 2) (2014) 88 ALJR 811; 311 ALR 351; [2014] HCA 31 at [4]]. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.

35    Some of the earlier authorities relevant to the exercise of the discretion in circumstances where the applicant achieved mixed results were referred to by the Full Court (Allsop CJ, Greenwood and Nicholas JJ) in Tramanco Pty Ltd v BPW Transpec Pty Ltd (No 2) [2014] FCAFC 58 at [2] including Ruddock v Vadarlis (No 2) (2001) 115 FCR 229. In that case Black CJ and French J said at [11]:

•    Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order.

•    Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed.

•    A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties’ costs of them. In this sense “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or law.

See Hughes v Western Australian Cricket Association (Inc) (1986) ATPR ~40-748 at 48,136; approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 at 222.

36    The applicant submitted that it was successful in relation to the Flickering TVC and that it was the most important element of the LG campaign. I accept that it was the most important of the six television commercials (including the Modified Flickering TVC) in issue in the proceeding. I say this because it was most likely to cause the applicant’s business serious harm.

37    The applicant submitted that the Retailer Instructions, in relation to which it was also successful, were also of considerable significance. I accept that the Retailer Instructions were significant in that they contained a serious misrepresentation. However, as I have mentioned, the evidence as to the scale of their distribution was scant.

38    I accept that the Flickering TVC and the Retailer Instructions were the subject of extensive evidence and occupied a large amount of hearing time. But it is also necessary to look at the other issues that were in contest and upon which the applicant was wholly unsuccessful. The most significant of these was the “Full HD” issue. This was an issue that received a great deal of attention in written and oral evidence and in opening and closing submissions. The evidence relevant to this issue included a large amount of expert evidence given by Professor Banks and Professor Rogers, each of whom conducted sophisticated and (presumably) costly experimental work upon which they relied. Other witnesses also gave evidence in relation to the Full HD issue, and there was a substantial amount of hearing time devoted to cross-examination on the issue.

39    Leaving aside the survey evidence, my overall impression is that there was at least as much attention given to the Full HD issue at trial as was given to the Flickering TVC and the related issue of side effects.

40    Other issues that were contested in the proceeding related to the issues of brightness, weight, battery life and viewing angle. The latter issue arose solely out of the Retailer Instructions. The brightness issue related primarily to the Brightness TVC but I am mindful that at least some of the evidence relevant to it was also relevant to one of the representations made in the Retailer Instructions upon which the applicant was successful.

41    The applicant was unsuccessful in relation to five out of the six television commercials and the website statements. The applicant’s case based upon the five television commercials in relation to which it was unsuccessful raised questions as to how they would be perceived and understood by consumers. Both parties called a significant amount of expert evidence directed to that question, much of which was relevant to consumers’ understanding of all six television commercials including, in particular, the Flickering TVC. The matter of the website statements was relatively confined and mostly turned on matters of interpretation.

42    I am mindful that there was a great deal of attention given in the evidence, especially in cross-examination, to the issue of the respondent’s intention. The applicant relied on evidence of intention in support of its claims. Ultimately, it was only in relation to the matter of the Flickering TVC and the Retailer Instructions that this evidence was of assistance.

43    So far as the survey evidence is concerned, the applicant’s survey and the respondent’s survey were admitted into evidence but given no weight. Most of the hearing time devoted to the surveys in submissions and evidence was concerned with the applicant’s survey, which was more extensive and more elaborate than the “omnibus” survey conducted by the respondent.

44    Looking at the survey evidence in the broader context, I think the costs order should reflect the fact that not only was the applicant’s survey given no weight, much of it was directed at issues upon which the applicant ultimately failed. So far as the Flickering TVC is concerned, the applicant’s survey made no contribution to the applicant’s success on that issue.

45    I am also mindful that the respondent’s survey made no contribution to the respondent’s success on the “Full HD” issue. However, it needs to be recalled that the Full HD survey was a much smaller survey than that conducted by the applicant, and that there was far less time spent on it in evidence and submissions compared with the applicant’s survey.

46    Given the broad nature of the discretion I am required to exercise, and the need to make an award that I consider just in all the circumstances, I propose to order that the applicant pay 50% of the respondent’s costs of the proceeding to date including any reserved costs but excluding any costs the subject of any other previous costs order.

Disposition

47    There will be declarations and orders accordingly. The applicant has indicated that it intends to prosecute its claim for damages it says it has suffered as a result of the respondent’s contraventions of the ACL. It will be necessary for me to make further directions in relation to that issue.

Associate:

Dated:    20 May 2015