Case: Calderbank v Calderbank [1975] 3 All ER 333
Outcome: referred to
foundation for the Harris Scarfe contention is found in two letters from its solicitors to solicitors for the ACCC of 2 May 2008 containing a suggested proposal to resolve the ACCC's claims against it, and subsequently a further set of proposals contained in a letter from its solicitors of 29 May 2008. It filed no offer in Court in accordance with O 23 of the Federal Court Rules but relies upon the Calderbank principle: see Calderbank v Calderbank [1975] 3 All ER 333. I have carefully considered the respective submissions for the parties. In my view, the ACCC substantially succeeded in its claims against Harris Scarfe, and the reduction which I propose to make represents a broad brush attempt to reflect the fact that the ACCC did not succeed in respect of its claims of misleading and deceptive conduct in relation to what were called the Storewide Discount Representation and the 20% Off Storewide Representation contained both in the television advertising and in the catalogue. I have also taken into account that the ACCC, even in respect of the contraventions of ss 52 and 53 (e) of the Trade Practices Act 1974 (Cth) (the TP Act) upon which it succeeded, did not succeed in securing all the orders which it sought against Harris Scarfe. The declaratory and injunctive orders were, of course, confined to the particular contraventions established. The relevant injunctive order which the ACCC sought, which was unlimited in point of time, has been limited to a period of three years. No order was made for corrective advertising. An order was made to require Harris Scarfe at its own cost to maintain and continue the trade practices compliance program which it presently conducts, again for a period of three years. However, the detailed audit and supervision of that program, together with any modifications of it, and together with the "probation orders" which the ACCC sought whereby, in the event of further contravention of Pt V of the TP Act during the period of three years from the findings, the ACCC should be entitled to re-apply to the Court to extend the supervisory period in some form or another, were refused. I have taken into account that Harris Scarfe, at least by 2 May 2008, pointed out to the ACCC that it was unlikely to secure an unlimited injunction in time, or corrective advertising or supervision of the trade practices compliance program. I have also taken into account the relative time taken in evidence and submissions on the various issues in arriving at the apportionment as to costs. That includes the fact that the contentions of Harris Scarfe, and the extensive evidence it adduced about its significant attempts to avoid contravening the TP Act were not only relevant to the determination as to the appropriate orders to be made in the event certain contraventions were established, but also were said to be relevant to whether or not the alleged contraventions had occurred. More generally, I have sought to reflect that to a large extent the evidence was common to the allegations of the ACCC, so that even if the particular allegations on which the ACCC did not succeed had not been made, the nature and extent of the overall evidence would not have been much different. In relation to the more specific representations made in the catalogue described by the various banners to which reference is made in the primary judgment, each of those contraventions was established notwithstanding Harris Scarfe's contention that there was no misleading conduct at all because no representation of the nature alleged by the ACCC was made, or because on a detailed or close examination of the particular products advertised under the relevant banner, it could be seen that the banner could not or did not apply to the particular product, or because by reason of more detailed pricing information contained in relation to particular products under the more general banner an analysis of that pricing information would expose that the banner did not, or could not, apply to that particular product. I have exercised the discretion as to costs as if the letter of 29 May 2008 was a "Calderbank offer". Calderbank v Calderbank [1975] 3 All ER 333 was decided to enable a form of offer to be made which, if accepted, would bring an end to the proceedings or which, if rejected, could readily be measured against a judicially determined outcome, where the relevant Rules of Court did not permit an offer to consent to judgment to be filed in the terms of the proposed offer.