Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724 File number: NSD 2145 of 2017

Judge: BROMWICH J

Date of judgment: 28 May 2020

Catchwords: CONSUMER LAW – where parties agreed on the penalty and declarations to be made following admitted contraventions of ss 18, 29(1) and 33 of the Australian Consumer Law – where the respondents had conveyed by implied representation that there were material differences between two products, Osteo Gel and Emulgel, when in fact they were the same – held: agreed form of declaration and penalty of $4.5 million approved COSTS – where the respondents had admitted some contraventions prior to the liability hearing and denied others – where the disputed contraventions were not made out – held: the respondents pay the applicant's costs of the proceeding up to and including the date admissions were made – the applicant pay the respondents' costs of the proceeding from the date after admissions were made up to and including the date of the liability judgment – the respondents pay costs thereafter

Legislation: Australian Consumer Law (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)) ss 18, 29(1), 29(1)(g), 33, 224(4) Competition and Consumer Act 2010 (Cth) s 76(3) Evidence Act 1995 (Cth) s 191

Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd (No 2) [2017] FCA 205 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA 1408 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424; 343 ALR 327 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 Coffs Ex-Services Memorial & Sporting Club Ltd v Coffs Harbour Catholic Recreation & Sporting Club Ltd [2010] NSWSC 605 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Edutainments Pty Ltd v JMC Pty Ltd [2003] FCA 1253 Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No 2) Ltd v Generic Partners Pty Ltd (No 2) [2018] FCAFC 100 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; 54 ACSR 395 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 365 ALR 402 Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438