Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 475 of 2013

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

JUDGE: ALLSOP CJ DATE: 29 september 2014 PLACE: sydney

REASONS FOR JUDGMENT 1 On 18 June 2004 I published reasons in this matter and directed the parties to provide submissions as to orders if they could not agree upon them. The parties were not able to agree upon orders and filed competing draft orders together with submissions. 2 The draft orders supplied by both sides had a degree of complexity which I do not think is warranted by the matter. As my essential orders sought to make clear in particular from [140] onwards the issues litigated were tolerably straight-forward in terms of expression. I do not think over-complexity is required. Nor do I think a declaration in the form of reduction to the particularity of evidence is either required or appropriate in this case. 3 The orders reflect the case made by the ACCC which was directed to par-baked products. I appreciate that my reasoning in relation to "freshly baked" and "baked fresh" may conceivably go beyond that, but the ACCC should be entitled to relief only upon its pleaded case. 4 In the circumstances of this case, I do not think there is any necessity for compliance orders of the kind propounded by the ACCC. The publicity already received by Coles and the publicity likely to be received by the Corrective Notice to be displayed in stores and on the website will amply act as a discipline for the need for compliance. 5 One matter should be stated about the injunction I have made. The injunction is straight-forward and simple. The ACCC wished to include the usage of particular words which had been used in the proceedings. Coles in answer to this wanted a disclaimer or qualification to the effect that the words could be used if it made clear that the baking process was only partly undertaken on the day. The inclusion of both would be apt to produce difficulty. As I made plain in my judgment, the context of any particular representation will have to be taken into account to assess its accuracy. I do not repeat why I thought these representations were misleading or deceptive. Coles should be restrained from making the misleading or deceptive representations that they have made by the substantively simple expression that I have said. It is a matter for Coles to so conduct its business to ensure that the representations it makes do not contravene the order. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.