Krishnan v Estee Lauder Pty Ltd (No 2)

FEDERAL COURT OF AUSTRALIA

Krishnan v Estee Lauder Pty Ltd (No 2) [2022] FCA 274

File number:	WAD 156 of 2021
Judgment of:	BANKS-SMITH J
Date of judgment:	24 February 2022
Date of publication of reasons:	24 March 2022
Catchwords:	PRACTICE AND PROCEDURE - application to hear interlocutory injunction application ex parte - where no urgency - where no risk that notice to respondent would compromise proceedings - where relief sought had potentially far-reaching consequences for respondent - application dismissed - applicant directed to serve respondent
Cases cited:	Krishnan v Estee Lauder Pty Ltd [2022] FCA 273
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	13
Date of hearing:	24 February 2022
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	The Respondent did not appear

ORDERS

WAD 156 of 2021

BETWEEN:

MEENAKSHI KRISHNAN

Applicant

AND:

ESTEE LAUDER PTY LTD (ACN 008 444 719)

Respondent

ORDER MADE BY:	BANKS-SMITH J
DATE OF ORDER:	24 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The applicant is to serve her application for an interlocutory injunction filed 9 February 2022 and her supporting affidavit filed 17 February 2022 on the respondent by email to the respondent's solicitors forthwith.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1. In reasons published in Krishnan v Estee Lauder Pty Ltd [2022] FCA 273 I set out the nature of the claim brought by Ms Krishnan against the respondent (primary reasons).

2. In short, Ms Krishnan commenced these proceedings seeking relief arising out of her purchase of certain beauty products in circumstances where the advertised ingredients did not align with the ingredients in the products purchased.

3. The reason for the error in the description of the ingredients is explained in the primary reasons.  It arose from the transposition of product and ingredients lists for products available in the United States market to products available in the Australian market, despite the fact that a certain ingredient (benzoyl peroxide) was not an ingredient of the products available for sale in the Australian market.

4. The respondent's evidence supported its claim that the error was rectified during the period February 2021 to July 2021.  There was no evidence that the error persisted.

5. The proceedings were filed in June 2021.  After various case management hearings, on 7 October 2021 Ms Krishnan filed an amended application and amended statement of claim.  On 3 December 2021 the respondent filed its application for summary judgment or strike out.  The application was listed for hearing on 28 February 2022.

6. On 17 December 2021 Ms Krishnan purported to file an application seeking injunctive relief on an ex parte basis.  There were issues with the document.  The application was eventually accepted for filing on 9 February 2022.  The application was accompanied by an affidavit in support.  There was no undertaking as to damages provided.

7. By her interlocutory application Ms Krishnan…