Tugcu v Mars Australia Pty Ltd [2008] NSWSC 377

New South Wales Supreme Court

CITATION : Tugcu v Mars Australia Pty Ltd [2008] NSWSC 377

HEARING DATE(S) : 22 April 2008 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 22 April 2008

DECISION : Application dismissed with costs

CATCHWORDS : PROCEDURE - Injunctions - Halal logo on label of unauthorised product - New item with limited production - All reasonable steps taken to correct label, to stop issue of stock, to recall product, to place notice on website, to inform Halal Certification Authority Australia of steps taken - Application for injunction restraining defendant from sale or distribution of product - No infringement of common law right - No negative stipulation in contract - Reliance upon the Trade Practices Act 1974 (Cth), s 80(2) for infringement of s 52 - Whether same principles should apply as with grant of interlocutory injunctions - Whether a serious question to be tried - Whether balance of convenience favours grant of injunction - Whether damages an adequate remedy

LEGISLATION CITED : Trade Practices Act 1974 (Cth)

Berat Tugcu (First Plaintiff) Mehmet Tugcu (Second Plaintiff) Adem Tugcu (Third Plaintiff) PARTIES : Nurten Tugcu (Fourth Plaintiff) Ayten Tugcu (Fifth Plaintiff) Nuray Tugcu (Sixth Plaintiff) Mars Australia Pty Ltd (Defendant)

FILE NUMBER(S) : SC 2405/08

COUNSEL : Mr M J Darke (Defendant)

SOLICITORS : Asad Lawyers (Plaintiffs) Baker & McKenzie (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 22 APRIL 2008

2405/08 BERAT TUGCU & ORS v MARS AUSTRALIA PTY LTD EX TEMPORE JUDGMENT 1 The plaintiffs are a family who have over the past four years purchased Dolmio food products made by the defendant, Mars Australia Pty Ltd, that bear a halal logo on their label. The ingredients and recipes for such products are certified by the Halal Certification Authority Australia. 2 The plaintiffs recently discovered that a product known as Pasta Bake Creamy Mushroom which bore the halal label contained some white wine and was, therefore, not halal. 3 This was drawn to the attention of Mars. Its solicitors responded by saying there are 50 different variants or pack sizes of the Dolmio range of products sold in Australia, of which 15 currently display the halal logo. The halal logo should only appear on labels of products certified by the Halal Certification Authority Australia. Dolmio Pasta Bake Creamy Mushroom is a new product that has had limited production to date. 4 The solicitors acknowledged that the product did not qualify for halal certification. The logo had been applied incorrectly during the label development stage due to errors and oversights that are being investigated. The error had not been detected before receipt of the plaintiffs' letter. Mars took seriously its obligations to provide consumers with information that was both accurate and helpful. 5 The solicitors said that Mars took the following steps. It put an immediate stop on the release of all stock on hand of Dolmio products bearing the mistaken label so that no more of that product was distributed to the market. It developed and was implementing a plan to have all stock of Dolmio product bearing the mistaken label removed from retailers' shelves so the product is not sold unless and until it is correctly labelled. It contacted the Halal Certification Authority Australia to advise it of its error, of the steps it is taking to rectify that error, and of the process for dealing with any consumer complaints or inquiries. It placed a notice on the Dolmio website of the error, the steps being taken to rectify it and Mars' willingness to replace or refund product where consumers are of the view that they were misled by the use of the halal logo. 6 The plaintiffs seek an order that Mars be immediately prevented from sale and/or distribution of its Dolmio Pasta Bake Creamy Mushroom product bearing the halal logo when the ingredients of the said product are alcohol inclusive/white wine inclusive. 7 The plaintiffs do not assert infringement of any common law right. Nor is there evidence of any negative stipulation in a contract between the plaintiffs and Mars that might give rise to the grant of an injunction in the auxiliary jurisdiction. Reliance is placed upon the solicitor's letter as constituting an admission of infringement of the Trade Practices Act 1974 (Cth), s 52. 8 No doubt an injunction could be granted under the Trade Practices Act, s 80 to prevent infringement of s 52 in an appropriate case. The court could issue an interim injunction pending determination of an application for final injunctive relief under s 80(2). 9 While the plaintiffs have established a prima facie case of infringement of the Trade Practices Act, s 52, similar considerations should apply to the statutory grant of an interim injunction under s 80(2) as apply to the grant of an interlocutory injunction in equity. 10 I doubt that there is a serious question to be tried in light of the steps taken by Mars to rectify the situation. But in any event, it does not seem to me that the balance of convenience favours the grant of an injunction. Mars has taken steps to rectify the situation so that there will be no further infringement of the Trade Practices Act, s 52. And, in light of those steps, damages are an entirely suitable remedy. 11 I reject the application. I dismiss the notice of motion. I order the plaintiffs to pay the defendant's costs.