Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd

The Australian Competition and Consumer Commission (ACCC) sought pecuniary penalties against Coles Supermarkets Australia Pty Ltd for misleading representations about the freshness and baking process of certain bakery products. The Federal Court was tasked with determining the appropriate penalty for Coles' conduct under section 224 of the Australian Consumer Law (ACL). The legal issues included whether the absence of evidence of harm to competitors could be considered a mitigating factor and whether previous similar conduct by Coles could influence the penalty.

The court found that Coles' conduct harmed its competitors and that the absence of evidence of harm was not a mitigating factor. The court also considered whether Coles' previous conduct, which was found to be unconscionable, was similar to the current contraventions. The court concluded that the previous conduct was not similar as it pertained to different provisions of the ACL. The court further noted that while the previous judgment could be considered under section 224(2)(c) of the ACL, the current conduct involved different legal provisions and therefore could not be directly compared.

The court ordered Coles to pay a pecuniary penalty of $2.5 million for the contraventions of sections 29(1)(a) and 33 of the ACL. Additionally, Coles was required to pay the ACCC's costs for the balance of the proceedings after the liability hearing. The decision highlighted the importance of considering all relevant matters in determining the appropriate penalty, including the nature and purpose of the conduct, and the absence of mitigating factors such as harm to competitors.