Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd & Anor

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Australian Safeway Stores Pty Ltd and Woolworths Limited (collectively referred to as Safeway) in the Federal Court of Australia. The dispute concerned allegations that Safeway had engaged in misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Specifically, the ACCC alleged that Safeway had made false or misleading representations regarding the pricing of certain grocery items, leading consumers to believe they were receiving a discount when they were not.

The primary legal issue before the Full Federal Court was whether Safeway's conduct constituted misleading or deceptive conduct within the meaning of section 52 of the *Trade Practices Act 1974* (Cth). This involved determining whether the representations made by Safeway about the pricing of its products were, in fact, false or misleading to a reasonable consumer in the circumstances. The court also considered the scope of Safeway's liability and the appropriate remedies for any contraventions found.

The Full Federal Court, comprising Gummow, Hayne, and Callinan JJ, analysed the evidence presented, including the way in which prices were displayed and advertised. The court applied the established legal principles for assessing misleading or deceptive conduct, which require an objective assessment of whether the conduct, viewed as a whole, was likely to mislead or deceive a significant number of consumers. The court considered the overall impression created by Safeway's pricing strategies and whether this impression was likely to lead consumers into error regarding the actual price or any purported discount.

The court ultimately found that Safeway had engaged in misleading or deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth). The court determined that the representations made by Safeway regarding the pricing of certain products were likely to mislead consumers into believing they were receiving a discount when, in reality, the prices were not reduced as suggested. Consequently, the court made orders against Safeway, including declarations of contravention and the imposition of pecuniary penalties.