Following a judgment in favour of Metcash on 30 November 2011, when the appellant (the ACCC) was ordered to pay the respondents’ costs, Metcash (first respondent) filed an interlocutory application seeking orders that the costs to which it is entitled be paid on a differential basis, such that costs of the appeal incurred after 7 October 2011, including the costs of the interlocutory application, be paid on an indemnity basis rather than as between party and party.
The basis for the application was Metcash’s claim that the ACCC had unreasonably failed to accept an offer to compromise made by it under cover of a letter dated 5 October 2011. The Full Court held:
[21]… the Commission’s case on appeal was not such that it was inevitable that it would lose. In those particular circumstances it was not required to abandon its appeal simply because of the prospect on offer of a more favourable position on costs.
[22] On balance we are not persuaded that the Commission’s rejection of the offer to compromise was unreasonable in all the circumstances. We therefore decline to make the orders sought in the application.
The Full Court dismissed the interlocutory application and ordered that Metcash pay the ACCC’s costs of, and incidental to, the application.
