Australian Competition & Consumer Commission v Target Australia Pty Ltd (ACN 004 250 944) [2001] FCA 1326

FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v Target Australia Pty Ltd (ACN 004 250 944) [2001] FCA 1326

TRADE PRACTICES – misleading and deceptive conduct – false or misleading representations with respect to the prices of goods – final consent orders for remedies where contravenor has admitted breaches. Federal Court of Australia Act 1976 (Cth) s 21 Trade Practices Act 1974 (Cth) Pt IVB, V; ss 52, 53(e), 79, 80, 80A(1)(b)

Miller's Annotated Trade Practices Act 2001, 22nd Ed Trade Practices Commission v Santon Ltd [1993] ATPR 41-221 referred to Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1993) 41 FCR 89 referred to RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 referred to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 referred to ACCC v Real Estate Institute of WA Inc [1999] ATPR 41-719 referred to Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 referred to AUSTRALIAN COMPETITION & CONSUMER COMMISSION v TARGET AUSTRALIA PTY LTD (ACN 004 250 944) W 153 OF 2000 LEE J PERTH 25 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 153 OF 2000

BETWEEN: AUSTRALIAN COMPETITION & CONSUMER COMMISSION

APPLICANT

AND: TARGET AUSTRALIA PTY LTD

(ACN 004 250 944)

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 25 JUNE 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The Respondent have leave to amend the Amended Defence in the terms set out in the Minute of Proposed Re-Amended Defence received by the Court on 19 June 2001. 2. The Minute of Proposed Re-Amended Defence to stand as the Re-Amended Defence and service be dispensed with. 3. It be declared that the Respondent by: (a) causing to be broadcast on television stations in Western Australia, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, on or about each of the days of and between 25 June 2000 and 29 June 2000, advertisements for the sale of its clothing containing: (i) the visual representation "25% off all clothing", whereas the price of all clothing was not reduced by 25%; and (ii) the verbal representations "we are dropping the price of all mens', ladies' and kids' clothes by a massive 25%" and "that's right, 25% off every stitch of clothing", whereas the price of all clothing was not reduced by 25%; and (b) failing to disclose and/or failing to sufficiently disclose by those advertisements that the price of some items of clothing would not be so reduced, the Respondent has, in trade or commerce: (A) engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to section 52 of the Trade Practices Act 1974 ("the Act"); and (B) in connection with the supply or possible supply of, or with the promotion of the supply of goods, being clothing, made false or misleading representations with respect to the price of goods or services contrary to section 53(e) of the Act. 4. It be declared that the Respondent by: (a) causing to be published in Western Australia, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, between about 26 June 2000 and 28 June 2000, advertisements for the sale of its clothing containing the express representation "25 – 40% off every stitch of clothing", whereas the price of some items of clothing including ties, scarves, gloves, hats, underwear, socks and hosiery was not reduced by 25 – 40% or at all; and (b) failing to disclose and/or failing to sufficiently disclose by those advertisements that the price of some items of clothing would not be so reduced, the Respondent has, in trade or commerce: (A) engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to section 52 of the Act; and (B) in connection with the supply or possible supply of, or with the promotion of the supply of goods, being clothing, made false or misleading representations with respect to the price of goods or services contrary to section 53(e) of the Act. 5. It be declared that the Respondent by: (a) causing to be broadcast on television stations in Western Australia, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, on or about 16 July 2000, advertisements for the sale of its housewares containing: (i) the visual representation "15 to 40% off all housewares", whereas the price of items of manchester was not reduced by 15 to 40% or at all; and (ii) the verbal representation "we are taking 15 to 40% off all housewares", whereas the price of items of manchester was not reduced by 15 to 40% or at all; and (b) failing to sufficiently disclose by those advertisements that the price of items of manchester would not be so reduced, the Respondent has, in trade or commerce: (A) engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to section 52 of the Act; and (B) in connection with the supply or possible supply of, or with the promotion of the supply of goods, being housewares, made false or misleading representations with respect to the price of goods or services contrary to section 53(e) of the Act. 6. It be declared that the Respondent by: (a) causing to be published in newspapers in Western Australia, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, on or about 17 July 2000 advertisements for the sale of its housewares containing the express representation "15 to 40% off housewares", whereas the price of items of manchester was not reduced by 15 to 40% or at all; and (b) failing to disclose by those advertisements that the price of items of manchester would not be reduced, the Respondent has, in trade or commerce: (A) engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to section 52 of the Act; and (B) in connection with the supply or possible supply of, or with the promotion of the supply of goods, being housewares, made false or misleading representations with respect to the price of goods or services contrary to section 53(e) of the Act. 7. It be declared that the Respondent by: (a) representing on its website that "rainchecks" were offered "on all advertised merchandise except where notification has been given to Consumers, in the relevant advertisement, that no rainchecks will be given on specific merchandise"; (b) causing to be broadcast on television stations in Western Australia, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, between about 1 May 2000 and 5 August 2000, advertisements for the sale of its goods at discounted prices; (c) causing to be published in newspapers in Western Australia, New South Wales, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory, between about 1 May 2000 and 5 August 2000, advertisements for the sale of its goods at discounted prices; and (d) failing to disclose or failing to sufficiently disclose by those advertisements that no "rainchecks" were available, the Respondent has, in trade or commerce, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to section 52 of the Act. 8. An injunction restraining the Respondent, whether by itself, its servants, agents or otherwise howsoever, from, in trade or commerce in Australia, supplying, or offering to supply, to any person, clothing or goods for the home, advertised at a discounted price where no discount applies, for a period of four years from the date of these orders. 9. An injunction restraining the Respondent, whether by itself, its servants, agents or otherwise howsoever, in connection with the supply or possible supply of, or the promotion of the supply of, clothing or goods for the home, from making representations as to price without clearly and prominently disclosing all relevant conditions which apply or may apply to the price, for a period of four years from the date of these orders. 10. An injunction restraining the Respondent, whether by itself, its servants, agents or otherwise howsoever, in connection with the supply or possible supply of, or the promotion of the supply of, clothing, toys or goods for the home, from making representations as to the availability of rainchecks on merchandise without clearly and prominently disclosing where rainchecks do not apply in relation to specified items for a period of four years from the date of these orders. 11. The Respondent cause to be published at its own expense an advertisement in each of the newspapers contained in the First Newspaper List annexed to the minute of orders and marked "A", in the form annexed to the minute of orders and marked "B", and further that such advertisement shall be: (i) of a size not less than 280mm x 4 columns; (ii) in text which is in the type not less than 9 point; (iii) published on a right hand page of the newspaper; (iv) published within the first half of the newspaper; and (v) published according to the First Advertising Schedule annexed to the minute of orders and marked "C". 12. The Respondent cause to be published at its own expense an advertisement in each of the newspapers contained in the Second Newspaper List annexed to the minute of orders and marked "D", in the form annexed to the minute of orders and marked "B", and further that such advertisement shall be: (i) of a size not less than 280mm x 4 columns; (ii) in text which is in the type not less than 9 point; (iii) published on a right hand page of the newspaper; (iv) published within the first half of the newspaper; and (v) published according to the Second Advertising Schedule annexed to the minute of orders and marked "E". 13. The Respondent cause to be published at its own expense an advertisement in each of the newspapers contained in the First Newspaper List annexed to the minute of orders and marked "A", in the form annexed to the minute of orders and marked "B", and further that such advertisement shall: (i) be of a size not less than 380mm x 7 columns; (ii) be in text which is in the type not less than 12 point; (iii) be published on a right hand page of the newspaper; (iv) be published within the first half of the newspaper; (v) be published according to the First Advertising Schedule annexed to the minute of orders and marked "C"; and (vi) contain the Target rondel. 14. The Respondent cause to be published at its own expense an advertisement in each of the newspapers (with the exception of the Bunbury Mail) contained in the Second Newspaper List annexed to the minute of orders and marked "D", in the form annexed to the minute of orders and marked "B", and further that such advertisement shall: (i) be of a size not less than 380mm x 7 columns; (ii) be in text which is in the type not less than 12 point; (iii) be published on a right hand page of the newspaper; (iv) be published within the first half of the newspaper; (v) be published according to the Second Advertising Schedule annexed to the minute of orders and marked "E"; and (vi) contain the Target rondel. 15. The Respondent cause to be broadcast at its own expense the advertisement described in the material annexed to the minute of orders and marked "F" and contained on the video cassette annexed to the minute of orders and marked "G" on the television stations contained in the Television List annexed to the minute of orders and marked "H", and further that such advertisement shall be: (i) broadcast for the first time within 14 days of the making of these orders; (ii) broadcast between the hours of 7.30pm and 9.30pm; and (iii) broadcast according to the Advertising Schedule annexed to the minute of orders and marked "C"; and 16. The Respondent will use its best endeavours to ensure that its Trade Practices Corporate Compliance Program is consistent with AS3806 by 31 July 2001, and provide evidence to the Applicant of that fact by 14 August 2001. 17. The Respondent pay the Applicant's costs of the action in the agreed sum of $65,000.00.