Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286 File number: SAD 181 of 2016

Judge: WHITE J

Date of judgment: 24 August 2018

Catchwords: CONSUMER LAW – pecuniary penalty for contraventions of the Australian Consumer Law by the making of false or misleading representations – appropriate application of the course of conduct principle – aggregate of penalties where multiple contraventions occurred – whether a corrective publication order is necessary given length of time since contraventions occurred – whether an order for a compliance program is appropriate. COSTS – application for party and party costs by Applicant – apportionment of costs not appropriate given that the claims on which ACCC did not succeed involved similar factual enquiries to that on which it did succeed – orders as to costs when Applicant has acted in public interest in initiating proceedings.

Legislation: Australian Consumer Law ss 18, 29(1)(g), 224. 246 Competition and Consumer Act 2010 (Cth) s 155 Trade Practices Act 1974 (Cth) s 96(3)

Cases cited: Anheuser-Busch Inc v Budějovický Budvar, Národní Podnik [2002] FCA 624 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v Aveling Homes Pty Ltd [2017] FCA 1470 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 Australian Competition and Consumer Commission v Dermalogica Pty Ltd [2005] FCA 152; (2005) 215 ALR 482 Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd [2009] FCA 54 Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited [2018] FCA 360 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265; (2005) 215 ALR 301 Australian Competition and Consumer Commission v Panasonic Australia Pty Ltd [2010] FCA 856 Australian Competition and Consumer Commission v Real Estate Institute of Western Australian Inc [1999] FCA 18; (1999) 95 FCR 114 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 Australian Competition and Consumer Commission v SMS Global Pty Ltd [2011] FCA 855 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] FCA 2058 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2010] FCA 790; (2010) 188 FCR 238 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Couch v The Attorney-General [2010] NZSC 27; [2010] 3 NZLR 149 Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 2) [2010] FCA 644