Injunction
50 Unilever also pressed for an injunction to restrain future conduct.
51 The injunction sought (as modified by the written submissions) was in the following terms:
3. An order that the Respondents be permanently restrained whether by themselves, their servants or agents, in trade or commerce, from distributing or exhibiting, or causing to be distributed or exhibited, packets of Logicol bearing:
(a) the Impugned Label; and/or
(b) the Performance Claim
[each is a term defined elsewhere]
in respect of Logicol in its current or a materially similar formulation at any time that Flora pro-activ in its current or a materially similar formulation is available for purchase by consumers from retail stores in Australia.
4. An order permanently restraining the Respondents, whether by themselves, their servants or agents, in trade or commerce, from making, or causing to be made, the Performance Claim in respect of Logicol in its current or a materially similar formulation at any time that Flora pro-activ in its current or a materially similar formulation is available for purchase by consumers from retail stores in Australia.
52 If I was otherwise persuaded to grant an injunction it would need to be expressed in terms that did not require incorporation of definitions appearing elsewhere, and to reflect what I have found to be the substance of the representation made. In light of the conclusions I have reached it is not necessary to make those adjustments, although during oral submissions it was made clear by counsel for Unilever that any particular concern with drafting could be addressed after publication of reasons for judgment. As will be seen, in my view there are more fundamental considerations at work.
53 As part of the marketing plans for the introduction of the new labelling, assessments were made about whether it would draw unfavourable reactions from Unilever or from regulatory authorities. One concern, connected with the possible response of regulatory authorities, was the known prohibition on providing any form of medical advice. Even though Goodman Fielder withdrew from a suggested approach, directly attributing No 1 status to Logicol in the view of doctors, nevertheless it is plain from the evidence that it was intended that an impression be left that Logicol was more effective than other table spreads, particularly Pro-Activ, even though those responsible knew that no such claim could be made overtly because it was not true. They decided, after some deliberations, to proceed unless stopped. The internal documents of Goodman Fielder, tendered in evidence in the present case, showed that there was a substantial element of calculation, and risk taking, in the final decision to proceed with the new logo.
54 As part of contingency plans made to accompany the decision to proceed, in full knowledge of the risks involved, arrangements were made for the relatively rapid substitution of new forms of labelling should that become necessary, as ultimately it did. Although, at a practical commercial level, those arrangements allowed Goodman Fielder to respond quickly, and perhaps to contain the ultimate effect of its conduct, there is no doubt that they also reflect a pragmatic consciousness of the fact that permissible limits of conduct were being tested, and perhaps exceeded. The question which comes sharply into focus as a result is whether there may be the requisite level of confidence that the legal limits established by s 52 and s 53 of the Act will be observed without the additional sanction represented by an appropriately drawn injunction.
55 In ACCC v Harris Scarfe, Mansfield J considered the circumstances in which it might be appropriate to grant injunctive relief, in addition to declaratory relief, for breach of the Act. In deciding to grant injunctive relief in that case his Honour was influenced by the fact that the form of order sought was "quite specific". It was "not generic, in the sense that it simply prohibits conduct which the TP Act prohibits". His Honour also took into account the fact that steps had been taken to avoid contraventions in the future but, having regard to past history, which included earlier undertakings given in 2004 and 2006, his Honour concluded on balance that it was appropriate to grant injunctive relief.
56 In the present case Unilever has taken some care to attempt to craft an order which would only restrain a claim for superior efficacy for Logicol while the plant sterol concentrations of Logicol and Pro-Activ remained equivalent. Nevertheless, I am not satisfied in this case that injunctive relief should be granted. Injunctive relief is not granted simply as a form of punishment nor as a gesture signifying that one party has prevailed over the other. The Court's view of the conduct will be expressed in the declarations which I propose to make. I would only grant an injunction as a form of final relief if I was persuaded that it was necessary for either the protection of consumers or the legitimate interests of Unilever and, in either case, that there was a sufficiently well-founded basis for an apprehension that, otherwise, further contravening conduct might occur.
57 Unless an injunction was appropriately directed to identified behaviour which, it was reasonably apprehended, might occur in the future it would have no particular utility. Notwithstanding the attempt to draft an injunction meeting the need for appropriate specificity (and the offer to revisit the task after publication of reasons for judgment), I am not satisfied that an injunction could be satisfactorily drafted in a way which would provide a sufficiently clear statement of Goodman Fielder's obligations, avoid the need for supervision by the Court and, at the same time, go no further than was necessary to prevent conduct which, as a result of what was revealed by the present proceedings, might reasonably be anticipated would breach s 52 or s 53 of the Act.
58 Despite my concern about what some might regard as a cynical disregard in the present case of the obvious intent of s 52 and s 53, the risk that the same conduct would be repeated is, in my view, slight and could be speedily addressed if necessary. It would be surprising if, in light of the outcome of the present case, Goodman Fielder felt able, consistently with its legal obligations, to make any future claim of a kind which the suggested injunction would specifically restrain. If any future conduct proceeded upon some different basis it would require evaluation taking all relevant circumstances into account. The matters which compel the result in the present case may not all be present, or may require evaluation in a different context.
59 A case for injunctive relief is not made out.