Krishnan v Estee Lauder Pty Ltd

1. The applicant is to serve her application for an interlocutory injunction filed 9 February 2022 and her supporting affidavit filed 17 February 2022 on the respondent by email to the respondent's solicitors forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 In reasons published in Krishnan v Estee Lauder Pty Ltd [2022] FCA 273 I set out the nature of the claim brought by Ms Krishnan against the respondent (primary reasons). 2 In short, Ms Krishnan commenced these proceedings seeking relief arising out of her purchase of certain beauty products in circumstances where the advertised ingredients did not align with the ingredients in the products purchased. 3 The reason for the error in the description of the ingredients is explained in the primary reasons. It arose from the transposition of product and ingredients lists for products available in the United States market to products available in the Australian market, despite the fact that a certain ingredient (benzoyl peroxide) was not an ingredient of the products available for sale in the Australian market. 4 The respondent's evidence supported its claim that the error was rectified during the period February 2021 to July 2021. There was no evidence that the error persisted. 5 The proceedings were filed in June 2021. After various case management hearings, on 7 October 2021 Ms Krishnan filed an amended application and amended statement of claim. On 3 December 2021 the respondent filed its application for summary judgment or strike out. The application was listed for hearing on 28 February 2022. 6 On 17 December 2021 Ms Krishnan purported to file an application seeking injunctive relief on an ex parte basis. There were issues with the document. The application was eventually accepted for filing on 9 February 2022. The application was accompanied by an affidavit in support. There was no undertaking as to damages provided. 7 By her interlocutory application Ms Krishnan sought an order that the respondent cease the sale of Clinique Anti Blemish Solutions (CABS) products and remove all advertising relating to such products until the Therapeutic Goods Administration 'considers that the CABS products are safe to use'. She also sought an order that the respondent be restrained from advertising Clinique Acne Solutions products on Australian websites, being products produced for the United States market. 8 On 24 February 2022 I conducted a hearing with Ms Krishnan in order to provide her with the opportunity to make submissions as to why she contended that the application for injunctive relief should proceed ex parte. 9 I suggested to Ms Krishnan that an interlocutory injunction of the nature sought would potentially have a very serious impact on the respondent's business and that in the ordinary course the Court would afford to the respondent the opportunity to address the claims made and the relief sought before making orders of such a far reaching nature, particularly where there was no evidence that suggested the respondent might undertake any particular conduct if it were informed of the application. By way of example, I explained to Ms Krishnan that this was not a case where a respondent might seek to dissipate assets if it knew about the threatened application, so that forewarning might prejudice an applicant's claim. Indeed, the respondent was already on notice of the claims made by Ms Krishnan as it had been served with her amended application and amended statement of claim. 10 Ms Krishnan submitted that she had previously asked the respondent to take her claims seriously and it had not done so, and that if it were forewarned about her application it might offer an excuse. 11 I explained to Ms Krishnan that I would not permit the interlocutory application to proceed ex parte, for the following reasons: (a) there are potential significant commercial ramifications for the respondent if relief of the nature she seeks were to be granted, and the respondent should have the opportunity to be heard on such application in circumstances where there is no particular urgency; (b) despite Ms Krishnan's expressed concerns about products being available in Australia that contain benzoyl peroxide, there is no particular urgency in this case because the evidence supports the propositions that the products available in Australia do not contain the ingredient benzoyl peroxide and the online advertising that suggested to the contrary had already been corrected voluntarily by the respondent, to the extent that it is able to control such advertising; (c) there was no evidence to suggest that the respondent might act in a manner that would jeopardise or compromise Ms Krishnan's pursuit of her claims if it were forewarned about the injunction application; and (d) the respondent was already well aware of many of Ms Krishnan's claims by way of the amended statement of claim and because it had been served with her evidence in opposition to the summary judgment and strike out application. 12 Accordingly, I made an order directing Ms Krishnan to serve the interlocutory application and supporting affidavit on the respondent, so that it might be dealt with by case management in the usual way. 13 I told Ms Krishnan that, noting she is self-represented, and noting that the respondent was not present at the hearing, I would provide brief reasons in due course. These reasons are published accordingly. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.