Australian Competition & Consumer Commission v Cadbury Schweppes Pty Ltd [2004] FCA 516

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Cadbury Schweppes Pty Ltd [2004] FCA 516

TRADE PRACTICES – misleading and deceptive conduct – labelling and packaging – cordials – depictions of real fruit on labels – no real fruit of those kinds used in cordials – whether label, packaging and appearance of cordial amounted to misrepresentation – whether sufficient for label to contain words 'flavoured cordial' – relevance of repealed regulations governing food labelling TRADE PRACTICES – remedies – declarations – whether appropriate – form of declaration – injunctions – whether appropriate – whether proposed conduct in contravention – discontinuance or repackaging of cordials – width of injunction based on past conduct alone – whether appropriate to order implementation of compliance program COSTS – applicant partially successful – applicant conducted proceeding in unnecessarily complex manner – whether order for less than full costs appropriate

Trade Practices Act 1974 (Cth) ss 52, 53(a), 55, 80 Evidence Act 1995 (Cth) ss 76, 79, 80(b) Federal Court of Australia Act 1976 (Cth) s 43(2) Australian Competition & Consumer Commission v Francis [2004] FCA 487 applied Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 (2003) 203 ALR 217 followed AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CADBURY SCHWEPPES PROPRIETARY LIMITED V 177 of 2002 GRAY J 30 APRIL 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 177 of 2002

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: CADBURY SCHWEPPES PROPRIETARY LIMITED

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 30 APRIL 2004

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT:

1. The respondent, by supplying to supermarket retailers in Australia from October 2001 until 14 March 2002 for sale to the public flavoured cordial under the Cottee's brand with a label containing: (a) the words 'banana mango flavoured cordial'; (b) pictorial representations of bananas and mangoes; and (c) a logo containing a caricature of a monkey with a half-peeled banana and an unpeeled banana and the words 'Go Bananas' and without taking sufficient steps to inform potential purchasers that the cordial did not contain bananas or mangoes, represented to potential purchasers that the cordial contained bananas and mangoes, and thereby in trade or commerce: (i) engaged in conduct that was likely to mislead or deceive, contrary to s 52(1); (ii) in connection with the supply or promotion of the cordial, falsely represented that the cordial was of a particular composition, contrary to s 53(a); and (iii) engaged in conduct that was liable to mislead the public as to the nature or characteristics of the cordial, contrary to s 55 of the Trade Practices Act 1974 (Cth).