Krishnan v Estee Lauder Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 24 March 2022
• Neutral Citation: [2022] FCA 273
• Date: 24 March 2022
• Court: Federal Court

Federal Court of Australia

Krishnan v Estee Lauder Pty Ltd [2022] FCA 273

File number:	WAD 156 of 2021
Judgment of:	BANKS-SMITH J
Date of judgment:	24 March 2022
Catchwords:	PRACTICE AND PROCEDURE - summary judgment - error by respondent in advertising of product on website - error inadvertent, admitted and rectified - whether applicant has no reasonable prospect of successfully prosecuting the proceeding or obtaining relief sought - whether proceeding is frivolous or vexatious - where hyperbole obscures claims - whether in alternative pleadings should be struck out - summary judgment entered in favour of respondent
Legislation:	Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 29, 33, 34, 54, 232, 236, 239 Federal Court of Australia Act 1976 (Cth) ss 31A, 37AM Federal Court Rules 2011 (Cth) rr 16.21, 26.01
Cases cited:	Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881 Australian Competition and Consumer Commission v MSY Technologies Pty Ltd [2017] FCA 1251 C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81 Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 Crocker v Toys 'R' Us (Australia) Pty Ltd (No 3) [2015] FCA 728 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Dowling v Commonwealth Bank of Australia [2008] FCA 59 Ethicon Sàrl v Gill [2021] FCAFC 29 Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 5) [2017] FCA 63 Herbert v American Express Australia Limited [2018] FCA 1790 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 Keenan v Bundaberg Port Authority [2016] FCA 134 Manolakis v Carter [2008] FCAFC 183 Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251 Parker trading as On Grid Off Grid Solar v Switchee Pty Ltd trading as Australian Solar Quotes [2018] FCA 479 Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 Rana v Google Australia Pty Ltd [2013] FCA 60 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited [2011] FCAFC 145 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Windsor v Sydney Medical Service Co‑operative Ltd (No 2) [2009] FCA 704
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	136
Date of hearing:	28 February 2022
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr D Larish
Solicitor for the Respondent:	Baker McKenzie

ORDERS

		WAD 156 of 2021
BETWEEN:	MEENAKSHI KRISHNAN Applicant
AND:	ESTEE LAUDER PTY LTD (ACN 008 444 719) Respondent

order made by:	BANKS-SMITH J
DATE OF ORDER:	24 March 2022

ON THE UNDERTAKING OF THE RESPONDENT made to the Court to pay to the applicant the sum of $6,866.40 within seven days of the respondent being notified by the applicant of the manner in which payment for her benefit is to be effected:

THE COURT ORDERS THAT:

1. Judgment is entered in favour of the respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2. The applicant pay the respondent's costs of and incidental to the interlocutory application dated 3 December 2021, such costs to be assessed by a registrar of this Court on a lump sum basis if not agreed.

3. If the parties seek any other costs order with respect to the proceedings, a minute of any proposed orders should be provided to chambers within 14 days.

4. There be liberty to apply with respect to any issue that arises relating to the manner of payment of the sum referred to in the above undertaking.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. Ms Krishnan is a holistic health practitioner and counsellor. According to her statement of claim, she has tertiary qualifications in nursing and law. Ms Krishnan pleads that she has been a loyal customer of the brand known as Estee Lauder for many years.

2. The respondent, Estee Lauder Pty Ltd, is responsible for importing, distributing, marketing and selling Clinique products in Australia. Clinique Laboratories LLC is a subsidiary of The Estee Lauder Companies Inc (ELC).

3. Ms Krishnan's complaint in this matter relates to the advertising of ingredients in a product line known as Clinique Anti-Blemish Solutions products (CABS products).

4. By this application the respondent relevantly seeks summary judgment in its favour or that Ms Krishnan's pleadings be struck out.

Introduction

5. According to the respondent's evidence, Clinique's Australian product range includes the CABS products. In Australia, the CABS products include Anti-Blemish All Over Clearing Treatment, Anti-Blemish Solutions Cleansing Gel, Anti-Blemish Solutions Cleansing Foam, Anti-Blemish Solutions Liquid Makeup, Anti-Blemish Solutions Cleansing Bar for Face and Body, Anti-Blemish Solutions Oil-Control Cleansing Mask and Anti-Blemish Solutions Clarifying Lotion. These products are available on the website 'www.clinique.com.au' (Clinique Australia website).

6. In the United States, Clinique markets and sells a range of products similar to the CABS products, which are marketed as an 'Acne Solutions' range (US CABS products). These products are available on the website 'www.clinique.com'.

7. Ms Krishnan's complaint centres on her purchases for personal use of the CABS product All Over Clearing Treatment. Ms Krishnan pleads that she purchased the product because she saw on the Clinique Australia website that it contained the ingredients salicylic acid and benzoyl peroxide. She was particularly interested in the inclusion of the ingredient benzoyl peroxide, an ingredient said to be anti-bacterial. Ms Krishnan asserts in her pleading that the efficacy and safety of topical benzoyl peroxide has not been clearly evaluated.

8. Ms Krishnan claims to have purchased the product (variously described by her as CABS All Over Clearing Moisturiser and CABS All Over Clearing Treatment) on eight occasions, by in‑store purchase, from the Clinique Australia website and from third party retailer websites, as follows:

1. on 31 May 2020 by...