RB (Hygiene Home) Australia Pty Ltd v S.C. Johnson & Son Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 11 December 2020
• Neutral Citation: [2020] FCA 1783
• Court: Federal Court
• Date: 11 December 2020

Federal Court of Australia

RB (Hygiene Home) Australia Pty Ltd v S.C. Johnson & Son Pty Ltd [2020] FCA 1783

File number:	NSD 1296 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	11 December 2020
Catchwords:	PRACTICE AND PROCEDURE – application for interim injunction – whether the applicant made out a prima facie case – whether the balance of convenience favoured the grant of an injunction or the refusal of relief – application refused with costs
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2, ss 18, 29(1), 33
Cases cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; 103 IPR 487 Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 REA Group Limited v Fairfax Media Limited [2017] FCA 91 Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited [2015] FCA 227 Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd (1981) 53 FLR 307 Telstra Corporation Limited v Singtel Optus Pty Ltd [2020] FCA 1372
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	33
Date of hearing:	9 December 2020
Counsel for the Applicant:	Mr R Lancaster SC with Mr A Vincent
Solicitor for the Applicant:	HWL Ebsworth Lawyers
Counsel for the Respondent:	Mr K Andronos SC with Mr T Hollo
Solicitor for the Respondent:	Addisons Lawyers

ORDERS

		NSD 1296 of 2020
BETWEEN:	RB (HYGIENE HOME) AUSTRALIA PTY LTD (ACN 629 549 506) Applicant
AND:	S.C. JOHNSON & SON PTY LTD (ACN 000 021 009) Respondent

order made by:	GRIFFITHS J
DATE OF ORDER:	11 DECEMBER 2020

THE COURT ORDERS THAT:

1. The applicant’s application for interim injunctive relief is dismissed.

2. The applicant pay the respondent’s costs, as agreed or taxed.

3. The matter be referred to the docket Judge for case management of the applicant’s application for final relief.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1. The applicant and respondent are competitors in the domestic pest control product market. The respondent sells “Raid” branded products, including “Raid Max” branded MultiPurpose Insect Killer which has been offered for sale since around July 2017. Raid Max packaging was modified in around August 2020 to include a double nozzle outlet application and, since late August 2020, “Raid Max” MultiPurpose Insect Killer and “Raid Max” Flying Insect Killer products have been offered for sale with a double nozzle (Raid Max Double Nozzle).

2. The applicant’s case is based on seven pleaded representations set out in [9] of its statement of claim (SOC) said to arise from three separate forms of advertising material (annexed to the SOC) used in connection with the respondent’s Raid Max Double Nozzle pest control products. Those three forms are a television advertisement, website material and a point of sale display. Initially, the applicant also relied upon the packaging of cans with the double nozzle, but it abandoned that aspect of its case at the outset of the interlocutory hearing.

3. The applicant seeks an interim injunction. It relies upon affidavits by Mr Pim Bolyn, Mr Mario Abela and Mr Craig Powell in support of that application. Some of that evidence is confidential.

4. The respondent opposes the interim injunction and has filed affidavits by Mr Kurt Hegvold, Mr James Keep and Mr Hayden Martin. Some of that evidence is confidential.

5. A video of the television advertisement was reviewed by the Court.

6. The seven pleaded representations are as follows:

1. the Raid Max Double Nozzle “Makes Missing Bugs Impossible”;

2. the Raid Max Double Nozzle “Delivers A Can’t Miss Spray”;

3. the Raid Max Double Nozzle kills bugs with the “CAN’T MISS SPRAY”;

4. the Raid Max Double Nozzle kills bugs “on the spot”;

5. the Raid Max Double Nozzle provides double the spray rate and spray coverage than single nozzle spray products;

6. the Raid Max Double Nozzle provides double the benefit, perceived or otherwise, than obtained using a single nozzle spray product; and

7. the Raid Max Double Nozzle is better and more effective than all other hand held spray canister pest control products in killing household pests.

Principles concerning interim injunctions

7. Unsurprisingly, there was substantial agreement on the relevant principles, which may be summarised as follows. In considering whether or not to grant interim injunctive relief, there are two main inquiries, namely whether:

1. the applicant for relief has made out a prima facie case, in the sense explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622-623; and

2. the balance of convenience favours the grant of an injunction or the refusal of relief (which may also require consideration of discretionary factors).

8. The requirement of a “prima facie” case requires the applicant to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65]. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks: Beecham at 622. In Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238, the Full Court said at [67]:

The question of whether there is a serious question or prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance.

See also GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; 103 IPR 487 at [81].

(a) Prima facie case

9. The principles applicable to ss 18, 29(1) and 33 of the Australian Consumer Law (as set out in Sch 2 of the Competition and Consumer Act 2010 (Cth)) are also well established. Relevantly, conduct will be misleading or deceptive if it has a tendency to lead into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at [39] per French CJ, Crennan, Bell and Kiefel JJ. Whether particular conduct is misleading or deceptive is a question of fact to be determined in the context of the evidence of the alleged conduct and the relevant surrounding facts and circumstances: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 at 198-199 per Gibbs CJ.

10. In the ordinary course of commercial dealings, a certain degree of puffery or exaggeration is to be expected. Indeed, puffery has been taken to be part of the...