Australian Competition & Consumer Commission v G.O. Drew Pty Ltd [2007] FCA 1246

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v G.O. Drew Pty Ltd [2007] FCA 1246

TRADE PRACTICES – misleading or deceptive conduct – false representations – incorrect labelling of eggs as organic eggs – admitted contraventions – whether appropriate to order declarations and injunctions sought by consent of parties – terms of injunctions – no threatened or intended future contravening conduct – no commonly accepted or recognised standard for determining whether egg is 'organic' – whether injunction can be framed to prevent repetition of contravening conduct – whether injunction should include element of honestly held belief in truth of representation WORDS AND PHRASES – "organic" Federal Court of Australia Act 1976 (Cth) s 21(1) Trade Practices Act 1974 (Cth) Pt V, ss 52, 52(1), 53(a), 53(c), 55, 80, 80(4)(a), 87B BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 (2004) 207 ALR 452 cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v G.O. DREW PTY LTD (ACN 004 578 312) AND TIMOTHY DREW VID 1395 OF 2005

GRAY J

16 AUGUST 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1395 OF 2005

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: G.O. DREW PTY LTD (ACN 004 578 312)

First Respondent

TIMOTHY DREW

Second Respondent

JUDGE: GRAY J DATE OF ORDER: 16 AUGUST 2007

WHERE MADE: MELBOURNE

BY CONSENT THE COURT DECLARES THAT:

1. The first respondent, between in or about March 2003 and in or about March 2005, by: (a) supplying eggs to retailers and other participants in the food industry, in packaging which stated that the eggs were "Organic", "Organic Free Range" and "Certified Organic by NASAA" (the National Association for Sustainable Agriculture Australia) and cited "Organic Producer No 3282"; and (b) thereby representing that: (i) all eggs labelled as 'organic' were different to eggs not so labelled, having regard to the chemicals, feed and other substances used in the production of the eggs; (ii) all eggs so packaged were certified organic by NASAA; and (iii) all eggs so packaged were produced by NASAA certified Organic Producer No 3282, when in fact in relation to some of the eggs so packaged: (iv) the eggs were not 'organic' and were not different to eggs not so labelled having regard to the chemicals, feed and other substances used in the production of the eggs; (v) the eggs had not been certified organic by NASAA; and (vi) the eggs had not been produced by NASAA certified Organic Producer No 3282, has, in trade or commerce: (c) engaged in conduct that was misleading or deceptive or was likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (Cth); and (d) in connection with the supply of goods represented that goods were of a particular standard, quality, value, grade or composition which they were not in contravention of section 53(a) of the Trade Practices Act 1974; and (e) in connection with the supply of goods, represented that goods had approval they did not have in contravention of section 53(c) of the Trade Practices Act 1974; and (f) engaged in conduct that was liable to mislead the public as to the nature and characteristics of goods in contravention of section 55 of the Trade Practices Act 1974. 2. The second respondent was directly knowingly concerned in the first respondent's contraventions of sections 52, 53(a), 53(c) and 55 of the Trade Practices Act 1974 by, as the manager of the first respondent, packing eggs, in packaging which represented, in trade or commerce, that: (a) all eggs labelled as 'organic' were different to eggs not so labelled, having regard to the chemicals, feed and other substances used in the production of the eggs; (b) all eggs so packaged were certified organic by NASAA; and (c) all eggs so packaged were produced by NASAA certified Organic Producer No 3282, when in fact in relation to some of the eggs so packaged, the second respondent knew that: (d) the eggs were not 'organic' and were not different to eggs not so labelled having regard to the chemicals, feed and other substances used in the production of the eggs; (e) the eggs had not been certified organic by NASAA; and (f) the eggs had not been produced by NASAA certified Organic Producer No 3282.