Australian Competition and Consumer Commission v Woolworths Limited

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: MORTIMER J
• Judgment Date: 05 July 2019
• Neutral Citation: [2019] FCA 1039
• Date: 05 July 2019

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039

File number:	VID 231 of 2018
Judge:	MORTIMER J
Date of judgment:	5 July 2019
Catchwords:	CONSUMER LAW – representations of “biodegradable and compostable” made on labelling of disposable dish and cutlery products sold by respondent – identification of nature of representations – whether representations were as to “future matters” within meaning of s 4 of the Australian Consumer Law – consideration of meanings of “future matter” and “reasonable grounds” in s 4 – whether respondent had reasonable grounds for representations – application dismissed ; CONSUMER LAW – misleading or deceptive conduct – whether representations of “biodegradable and compostable” contravened ss 18, 29 or 33 of the Australian Consumer Law – consideration of factors relevant to identifying “ordinary and reasonable” consumer – application dismissed
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (Cth) ss 4, 18, 29, 33 Evidence Act 1995 (Cth) ss 56, 135, 136, 191 Trade Practices Act 1974 (Cth) s 51A Federal Court Rules 2011 (Cth) r 34.50
Cases cited:	Ackers v Austcorp International Ltd [2009] FCA 432 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 358 ALR 683 Australian Competition and Consumer Commission v ACM Group Ltd (No 2) [2018] FCA 1115 Australian Competition and Consumer Commission v Birubi Art Pty Ltd [2018] FCA 1595 Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881; 60 IPR 296 Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114 Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2005] FCA 1703; ATPR 42-096 Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161; 95 FCR 302 Australian Competition and Consumer Commission v Henry Kaye and National Investment Institute Pty Ltd [2004] FCA 1363 Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49 Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd [2019] FCA 992 Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd [2001] FCA 1062 Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) [2015] FCA 211; ATPR 42-493 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] FCA 1904; 244 ALR 470 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; 202 CLR 45 Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 City of Botany Bay Council v Jazabas Pty Limited (ACN 060 105 053) [2001] NSWCA 94; ATPR 46-210 Cummings v Lewis [1993] FCA 190; 41 FCR 559 Director of Consumer Affairs Victoria v Gibson [2017] FCA 240 Friends of Leadbeater’s Possum Inc v VicForests [2018] FCA 178; 228 LGERA 255 Gardam v George Wills & Co Ltd (No 1) [1988] FCA 289; 82 ALR 415 Gate Gourmet Australia Pty Limited (in liq) v Gate Gourmet Holding AG [2004] NSWSC 149 General Electric Co (of USA) v General Electric Co Ltd [1972] 1 WLR 729 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2018] FCA 1; 133 IPR 190 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180; 2 FCR 82 Guy v Crown Melbourne Ltd (No 2) [2018] FCA 36; 355 ALR 420 Gwam Investments Pty Ltd v Outback Health Screenings Pty Ltd [2010] SASC 37; 106 SASR 167 Interlego AG v Croner Trader Pty Ltd [1992] FCA 992; 39 FCR 348 Krakowski v Eurolynx Properties Ltd [1995] HCA 68; 183 CLR 563 McGrath and Another v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2; 165 FCR 230 Pramoko v Grande Enterprises Ltd [2015] WASCA 157; 108 ACSR 469 Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430; 259 IR 47 Rosebanner Pty Ltd v EnergyAustralia [2009] NSWSC 43; 223 FLR 406 Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd [2015] FCA 227; 113 IPR 11 Seven Network Limited v News Limited (No 7) [2005] FCA 1092 Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 3) [2017] FCA 865; 124 IPR 435 Sportsbet Pty Ltd v Crownbet Pty Ltd [2018] FCA 1045 Sykes v Reserve Bank of Australia [1998] FCA 1405; 88 FCR 511 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; 275 IR 285
Date of hearing:	17-18, 20-21 September 2018
Date of last submissions:	20 December 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	423
Counsel for the Applicant:	Mr C D Golvan QC with Ms C Van Proctor
Solicitor for the Applicant:	Norton Rose Fulbright Australia
Counsel for the Respondent:	Mr C Moore SC with Ms N Oreb
Solicitor for the Respondent:	Ashurst Australia

Table of Corrections
22 July 2019	In the last sentence of paragraph 147, the word “had” has been replaced with “did not have”.

ORDERS

		VID 231 of 2018
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	WOOLWORTHS LIMITED Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	5 july 2019

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the proceeding, including any reserved costs, to be fixed by way of a lump sum.

3. On or before 4 pm on 26 July 2019, the parties are to submit proposed agreed orders as to lump sum costs, or alternatively inform the Court the parties have not reached agreement on the question of costs.

4. In the absence of any agreement as to the appropriate lump sum to be fixed for the respondent’s costs, the matter be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

The course of the proceeding	[7]
the products, their supply and sale	[12]
Description of...