REASONS FOR JUDGMENT
1 On 15 February 2008, I published reasons for judgment in this matter reserving the question of what orders should be made to give effect to those reasons. The parties have made submissions. In issue is whether declaratory orders should be made and, if so, their terms. Also in issue is whether an injunction should issue and, if so, its terms. Similarly there is an issue about whether corrective advertising should be ordered and, if so the terms of the advertisements and where they should be placed. Lastly, there is an issue about what order should be made as to costs.
2 The declaratory orders sought by the Australian Competition and Consumer Commission are in the following terms:
The Court declares that
1. Prouds has in trade or commerce engaged in conduct that is misleading or deceptive, or is likely to mislead or deceive, in contravention of section 52 of the Trade Practices Act 1974 by publishing and disseminating a catalogue entitled "Summer of Love" in Australia during January and February 2006 containing representations that, for a reasonable period immediately preceding publication of that catalogue, the price identified in that catalogue by the word "Was" for each of the items of jewellery identified by the SKU Codes 2952471, 4050554, 4050562, 2894889, 2906399, 2937001, 2958299, 2958972, 2996980, 2971390, 2984008, 2984016, 7054991, 7102459, 7550654, 7712909 and 7757464 (17 Catalogue Items), was the usual price for each of those items of jewellery (Summer of Love Usual Price Representations), where contrary to each representation, the price identified by the word "Was" in that catalogue for each item of jewellery was not the usual price for each of those items for the period 1 December 2005 to 28 January 2006.
2. Prouds has in trade or commerce in connection with the supply or possible supply of goods, namely the 17 Catalogue Items, or in connection with the promotion of the supply of such goods, made false or misleading representations with respect to the price of goods, in contravention of section 53(e) of the Trade Practices Act 1974 in that it made the Summer of Love Usual Price Representations by publishing and disseminating a catalogue entitled "Summer of Love" in Australia during January and February 2006, where contrary to each representation, the price identified by the word "Was" in that catalogue for each item of jewellery was not the usual price for each of those items for the period 1 December 2005 to 28 January 2006.
3. Prouds has in trade or commerce engaged in conduct that is misleading or deceptive, or is likely to mislead or deceive, in contravention of section 52 of the Trade Practices Act 1974 by publishing and disseminating a catalogue entitled "Love You Mum" in Australia during April and May 2006 containing representations that, for a reasonable period immediately preceding publication of that catalogue, the price identified in that catalogue by the word "Was" for each of the 17 Catalogue Items was the usual price for each of those items of jewellery (Love You Mum Usual Price Representations), where contrary to each representation, the price identified by the word "Was" in that catalogue for each item of jewellery was not the usual price for each of those items for the period 26 December 2005 to 22 April 2006, or for any part of that period.
4. Prouds has in trade or commerce in connection with the supply or possible supply of goods, namely the 17 Catalogue Items, or in connection with the promotion of the supply of such goods, made false or misleading representations with respect to the price of goods, in contravention of section 53(e) of the Trade Practices Act 1974 in that it made the Love You Mum Usual Price Representations by publishing and disseminating a catalogue entitled "Love You Mum" in Australia during April and May 2006 where contrary to each representation, the price identified by the word "Was" in that catalogue for each item of jewellery was not the usual price for each of those items for the period 26 December 2005 to 22 April 2006, or for any part of that period.
5. Prouds has in trade or commerce engaged in conduct that is misleading or deceptive, or is likely to mislead or deceive, in contravention of section 52 of the Trade Practices Act 1974 by:
(a) publishing and disseminating a catalogue entitled "Love You Mum" in Australia during April and May 2006 containing representations that, for a reasonable period immediately preceding publication of that catalogue, the price identified in that catalogue by the word "Was" for each of the 17 Catalogue Items, was the price at which Prouds offered each of those items of jewellery for sale (Advertised Price Representations);
where
(b) contrary to each representation made in respect of the items identified by the SKU Codes 2906399, 2937001, 2952471, 2958299, 2984008, 2984016, 2996980, 4050554, and 4050562 Prouds offered each of those items for sale from 26 December 2005 to 22 April 2006 at prices which in every case were less than the price identified as the "Was" price in that catalogue; and
(c) contrary to each representation made in respect of the items identified by the SKU Codes 2894889, 2958972, 2971390, 7054991, 7102459, 7550654, 7712909 and 7757464, Prouds offered each of those items for sale from 26 December 2005 to 22 April 2006 (except for the period from 1 March 2006 to 1 April 2006) at prices which in every case were less than the price identified as the "Was" price in that catalogue.
6. Prouds has in trade or commerce in connection with the supply or possible supply of goods, namely the 17 Catalogue Items, or in connection with the promotion of the supply of such goods, made false or misleading representations with respect to the price of goods, in contravention of section 53(e) of the Trade Practices Act 1974 in that it:
(a) made the Advertised Price Representations by publishing and disseminating a catalogue entitled "Love You Mum" in April and May 2006 in Australia;
where
(b) contrary to each representation made in respect of the items identified by the SKU Codes 2906399, 2937001, 2952471, 2958299, 2984008, 2984016, 2996980, 4050554, and 4050562 Prouds offered each of those items for sale from 26 December 2005 to 22 April 2006 at prices which in every case were less than the price identified as the "Was" price in that catalogue; and
(c) contrary to each representation made in respect of the items identified by the SKU Codes 2894889, 2958972, 2971390, 7054991, 7102459, 7550654, 7712909 and 7757464, Prouds offered each of those items for sale from 26 December 2005 to 22 April 2006 (except for the period from 1 March 2006 to 1 April 2006) at prices which in every case were less than the price identified as the "Was" price in that catalogue.
3 The declaratory orders proposed by Prouds Jewellers Pty Ltd (though its primary position was that no such order should be made) are:
1. A declaration that the statement of a "Was" price next to a "Now" price for an item of jewellery appearing in the Respondent's February 2006 "Summer of Love" catalogue (Summer of Love Catalogue) and May 2006 "Love You Mum" (Love You Mum Catalogue) did not constitute a representation:
(a) that the item of jewellery had previously been sold at that price; or
(b) that the item of jewellery was usually sold at that price; or
(c) that the difference between the Was price and the Now price was the amount a consumer would save if she or he purchased the item of jewellery for the Now price compared with what consumers paid for the item immediately preceding publication of the catalogue; or
(d) that a substantial volume of sales of the item of jewellery that occurred in a reasonable period immediately preceding publication of the catalogue was at the Was price.
2. A declaration that:
(a) the statement of a "Was" price next to a "Now" price for each of the items of jewellery identified by the SKU Codes SKU2952471, SKU4050554, SKU4050562, SKU2894889, SKU2906399, SKU2937001, SKU2958299, SKU2958972, SKU2996980, SKU2971390, SKU2984008, SKU2984016, SKU7054991, SKU7102459, SKU7550654, SKU7712909 and SKU7757464 (the 17 Catalogue Items) appearing in the Summer of Love Catalogue and the Love You Mum Catalogue did constitute a representation in trade or commerce that each such item had been offered for sale for an anterior period ending on a date immediately preceding publication of the catalogue and commencing on a date which is not capable of precise identification but could be two months prior to the date of publication;
(b) contrary to the representation the Respondent did not offer those items for sale at the Was price during such period; and
(c) the Respondent thereby engaged in misleading or deceptive conduct, or conduct likely to mislead or deceive, in contravention of section 52 of the Trade Practices Act 1974.
4 The first question is whether declarations should be made at all. Matters relevant to this question were recently discussed by Jacobson J in Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 (at [28]-[30]):
Sheppard J observed in Tobacco Institute at 100 that the court's power to make declarations may also be found within the Act itself. Relying on the presence of s 80(4) and (5), Sheppard J found that the policy of the Act, concerned as it is with public interest, extends to the area of declaratory relief, for it marks the court's disapproval of particular conduct which contravenes the Act.
The terms of the declarations sought must be scrutinised. In some cases it might be appropriate to simply make findings of fact that a respondent has contravened a provision of the Act. However, conduct constituting contravention of the Act need not be dishonest or flagrant before a court, may, in its discretion, grant declarations: Australian Competition and Consumer Commission v Goldy Motors Pty Limited(2001) ATPR 41-801 ("Goldy Motors") at [30] and [32] per Carr J.
Further factors to be considered in the exercise of the court's discretion include the fact that making declarations serves to vindicate an applicant's claim and may also assist in clarifying the law: Goldy Motorsat [34]. It has also been observed that there is a public interest in the court making declarations in cases involving admitted breaches of Part V the Act, for it is a piece of legislation of some importance to consumers and others engaged in trade and commerce: Goldy Motorsat [34]; see also Australian Competition and Consumer Commission v Target(2001) ATPR 41-840 ("Target") per French J at [18].
5 I am satisfied that declaratory orders should be made. They will articulate with precision the conduct of Prouds that contravened the Trade Practices Act 1974 (Cth). They will vindicate ACCC's claims, notwithstanding that it failed to satisfy the Court that the "was" price should be viewed as the previous selling price. The making of declaratory orders will also mark the Court's disapproval of Prouds' conduct which, at best, involved indifference about whether its promotional material fairly or accurately informed consumers about the extent to which, in truth, the promotional sale provided real and material benefits to the consuming public.