Loyalty Pacific P/L v. Jewel Food Stores P/L [1994] FCA 999

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IN THE FEDERAL COURT OF ausrratra YUPGMENT NO. sscessstenseestee esesteones

) VICTORIA DISTRICT REGISTRY ) No. VG 426 of 1994

GENERAL DIVISTON)

BETWEEN:

LOYALTY PACTFIC PTY LIMITED

Applicant - and - JEWEL FOOD STORES PTY LIMITED Respondent

JUDGE: Heerey J DATE: 1 December 1994 PLACE: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

I have listened carefully to the thorough argument that Mr Harrowell has advanced, but I see no basis for discharging the injunction I made yesterday. As I said in the course of argument, there is no doubt that there is plenty of room for argument as to the benefit of the Fly Buy scheme, and the value in money terms of it to various hypothetical consumers May vary. It may well be that some people are better off buying groceries at a cheaper supermarket like Jewel. But

that is not really the point of this case.

There was an advertisement which contained a very specific claim, namely that according to the Department of Consumer Affairs in one Fly Buy program you would have to spend around $17,000 over four years to earn one Melbourne to Sydney return ticket. The respondent in no way resiles from that assertion.

It has not, for example, urged upon the Court the alternative

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of 'an advertisement in the next few days excluding that offending sentence. More importantly, to my mind, the respondent has been on notice since well before these proceedings were commenced that the applicant alleged the advertisement was misleading and -deceptive. If the advertisement was prepared on the basis of an actual statement by the Department of Consumer Affairs to the effect alleged, then it would have been a very simple matter to produce that document, and it would have been a complete refutation of the

applicant's claim.

What has happened is that the respondent has produced a large number of press cuttings and the like, but nothing resembling a statement of the kind referred to in the advertisement. On the face of it, and I stress that I am dealing with this on an interlocutory hearing, and not making any final decision, it