Nick Scali Limited v Super A-Mart Pty Ltd (No 2)

Nick Scali Limited brought proceedings against Super A-Mart Pty Ltd, alleging misleading and deceptive conduct in relation to a television commercial and its availability online. The dispute was heard by the Federal Court of Australia. The primary issue before the Court was whether a declaration should be made concerning the respondent’s contraventions of section 52 of the Trade Practices Act. Additionally, the Court had to determine the appropriate order for costs. The applicant sought a declaration regarding the respondent’s contraventions of the Trade Practices Act, which the respondent opposed. The Court acknowledged its power to make such a declaration under section 21 of the Federal Court of Australia Act 1976 (Cth). However, the Court considered the utility of such a declaration, especially since there was no dispute about the injunctive relief sought and granted. The Court concluded that while the respondent had strenuously contested the allegations at trial, the findings in the published reasons for judgment were determinative. The Court ultimately decided that the utility of a declaration in this case was minimal, given that the primary relief sought was injunctive and there was no need to record the Court’s disapproval of the respondent’s conduct, as the injunctive relief was sufficient. Consequently, the Court dismissed the application for a declaration.

The Court also addressed the issue of costs, taking into account that both parties had achieved partial success. The Court ordered that the applicant pay the respondent’s costs incurred due to amendments made to the application and statement of claim. Furthermore, the respondent was ordered to pay 80% of the applicant’s costs of the proceeding as taxed or agreed. This apportionment of costs reflected the measure of success achieved by both parties in the litigation. The final orders included permanent injunctions against the respondent from broadcasting or making available the impugned commercial and from making certain representations in trade or commerce. The application was otherwise dismissed, and specific provisions were made for the apportionment of costs between the parties.