Whittome v Woolworths Group Limited

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FEDERAL COURT OF AUSTRALIA

Whittome v Woolworths Group Limited [2025] FCA 1015

File number: VID 1246 of 2024
Judgment of: O'BRYAN J
Date of judgment: 26 August 2025
Catchwords: REPRESENTATIVE PROCEEDING – application for security for costs – where representative proceeding raises the same allegations against the respondent as are raised in a separate proceeding brought by the Australian Competition and Consumer Commission against the respondent – where parallel orders made in the representative proceeding and the ACCC proceeding for an initial trial on the issue of liability with respect to an agreed sample of products – where security for costs application resolved on the basis that the applicant in the representative proceeding has given an undertaking to the Court that the applicant will not take an active role in the initial trial and will agree to be bound by the findings of fact made at the initial trial on issues of liability and will consent to orders under s 33ZB of the Federal Court of Australia Act 1976 (Cth) binding all group members other than any person who has opted out of the proceeding to the judgment on liability issues – consideration of appropriate form of orders
Legislation:

Federal Court of Australia Act 1976 (Cth), ss 23 37M, 37P, 33ZB, and 33ZF

Competition and Consumer Act 2010 (Cth)

Federal Court Rules 2011 (Cth), r 1.32

Legal Profession Uniform Law, s 183
Cases cited:

BMW Australia Ltd v Brewster (2019) 269 CLR 574

Ilumba Pty Ltd v Malouf [2019] FCA 2095

Kain v R&B Investments Pty Ltd [2025] HCA 28

Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212

Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 37
Date of hearing: 7 and 25 August 2025
Counsel for the Applicant:  Dr P K Cashman and Dr D J Townsend
Solicitors for the Applicant:  Gerard Malouf and Partners
Counsel for the Respondent:  Dr R Higgins SC and Ms N D Oreb
Solicitors for the Respondent: King & Wood Mallesons

ORDERS

VID 1246 of 2024
BETWEEN:

ROBBIE LEIGH WHITTOME

Applicant
AND:

WOOLWORTHS GROUP LIMITED (ACN 000 014 675)

Respondent

ORDER MADE BY:

O'BRYAN J

DATE OF ORDER:

26 AUGUST 2025

THE COURT NOTES THAT:

A.The issues of liability arising in this proceeding are materially the same as the issues of liability arising in Australian Competition and Consumer Commission v Woolworths Group Limited (VID974/2024) (ACCC proceeding).

B.On 23 May 2025, orders were made in this proceeding and in the ACCC proceeding to the effect that an initial trial on issues of liability will be conducted with respect to a sample of products as agreed between the parties or determined by the Court.

C.By interlocutory application dated 20 June 2025, the Respondent sought orders that the Applicant provide security for its costs of this proceeding up to and including the initial trial on issues of…

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Details
Case
[2025] FCA 1015
Decision Date

CaseChat Overview and Summary

The representative proceeding, Whittome v Woolworths Group Limited, commenced in the Federal Court, involves the applicant, Mr Robbie Leigh Whittome, alleging that Woolworths Group Limited engaged in misleading conduct regarding the pricing of certain products. This case aligns with the separate proceeding initiated by the Australian Competition and Consumer Commission (ACCC) against Woolworths, which alleges similar conduct. The primary legal issue before the court was whether the applicant should be required to provide security for costs in the context of a representative proceeding that mirrors the allegations made by the ACCC.

The court considered the nature of the proceedings, the implications of parallel litigation, and the practicalities of managing such cases jointly. The court found that the applicant, Mr Whittome, had given an undertaking that he would not take an active role in the initial trial of liability issues and would consent to orders binding all group members to the findings of fact made at the trial. This arrangement was deemed sufficient to resolve the security for costs application. The court concluded that the proposed form of orders, largely agreed upon by the parties, was appropriate and facilitated the efficient management of the proceedings. These orders included provisions for an indefinite adjournment of the security for costs application, restrictions on the applicant's actions until the determination of liability issues, and specific timelines for the implementation of the opt-out process for group members.

In summary, the court made orders largely in the form proposed by the parties, reflecting the unique circumstances of the case and ensuring the fair and efficient progression of both the representative proceeding and the ACCC proceeding. The orders address the management of security for costs, the joint liability trial, and the opt-out process for group members, ensuring that the proceedings are conducted in an orderly and coordinated manner.

Orders

Orders of the court

Joint Liability Trial

1. The initial trial on liability issues in this proceeding, the subject of orders made on 23 May 2025, be heard together with the initial trial on liability issues in the ACCC proceeding (Joint Liability Trial).

2. Orders 12 and 13 of the orders made on 23 May 2025 be vacated.

3. The Applicant is to take no step in this proceeding or in the ACCC proceeding (and including at the Joint Liability Trial), including seeking discovery, filing or adducing evidence, filing or making written or oral submissions, or cross-examining witnesses, except:

(a) upon application for leave of the Court, for which reasonable prior notice is provided to the Respondent; and

(b) with the specific leave of the Court; and

(c) without prejudice to the Respondent's right to submit that leave should not be granted until the determination of any application by the Respondent for security for costs (should the Respondent exercise its liberty to re-enliven its application).

4. At the Joint Liability Trial, the evidence in the ACCC proceeding be evidence in this proceeding.

5. Subject to the Court granting a release to the Respondent from its implied undertaking in the ACCC proceeding, and subject to order 6 below, the Respondent is to provide the Applicant with copies of:

(a) submissions, evidence and interlocutory applications filed;

(b) documents discovered; and

(c) orders made,

in the ACCC proceeding relating to the initial trial on liability issues.

6. In relation to any documents provided by the Respondent to the Applicant in accordance with order 5 above, and in addition to the usual implied undertaking, the Applicant:

(a) must comply with any confidentiality arrangements agreed or ordered in the ACCC proceeding in respect of those documents; and

(b) must comply with any confidentiality arrangements agreed or ordered in this proceeding in respect of those documents (including as to such documents being filed in the proceeding or being relied on in open Court or tendered).

7. The Applicant is to have access to all transcripts of hearings (both interlocutory and trial) in the ACCC proceeding relating to the initial trial on liability issues.

Security for costs

8. Subject to order 9, the Respondent’s interlocutory application dated 20 June 2025 seeking security for costs be adjourned indefinitely.

9. If the Applicant applies for leave of the Court to take a step in this proceeding or in the ACCC proceeding, the Respondent may re-enliven its application for security for costs.

Opt out process

10. By 29 August 2025, the Applicant provide the Respondent with proposed orders and a proposed notice under ss 33J, 33X and 33Y of the Act to enable Group Members to exercise their right to opt out of the proceeding and notifying them of the relevant matters in these orders.

11. By 3 September 2025, the Respondent provide its response to the Applicant’s proposed opt out orders and notice.

12. By 5 September 2025, the parties confer and attempt to reach agreement on the proposed opt out orders and notice.

13. By 8 September 2025, the parties submit to the Associate to Justice O’Bryan:

(a) any agreed opt out orders and notice; or

(b) if agreement has not been reached, any competing opt out orders and notice and any outline of submissions (not exceeding 3 pages) and affidavit in support.

14. The making of opt out orders be addressed at a case management hearing at 9.30 am on 10 September 2025.

Other

15. Costs be reserved.

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

Background

Background to the litigation

I am satisfied that the Court has power, and that it is appropriate, to make orders largely in the form proposed by the parties. These are my reasons for making the orders.Background On 23 September 2024, the Australian Competition and Consumer Commission (ACCC) commenced a proceeding (VID974/2024) against Woolworths, alleging that:(a)between September 2021 and May 2023 (relevant period), Woolworths temporarily increased the prices of at least 266 different products (Affected Products) before placing them on ‘Prices Dropped’ promotions at prices which were higher than, or the same as, the price at which each product had ordinarily been offered for sale prior to the temporary price spike; (b)by that conduct, Woolworths represented to consumers that the prices of Affected Products promoted on ‘Prices Dropped’ were discounted when, in fact, the purported discount was illusory; and (c)Woolworths thereby made false or misleading representations in relation to the sale of products in Woolworths Supermarkets in breach of ss 18 and 29(1) of the ACL. On 14 November 2024, the applicant commenced this representative proceeding against Woolworths advancing materially the same allegations as the ACCC proceeding, and claiming damages on his own behalf and on behalf of other persons (group members) who purchased one or more Affected Products during the relevant period from Woolworths. As the two proceedings raise the same issues with respect to liability (but not relief), they are being jointly case managed. The representative applicant, Mr Robbie Leigh Whittome, is represented by Gerard Malouf and Partners (GMP Law). The proceeding is not subject to a litigation funding arrangement. GMP Law is conducting the proceeding on a ‘no win no fee basis’. Prior to the recent decision of the High Court in Kain v R&B Investments Pty Ltd [2025] HCA 28 (R&B Investments), GMP Law had informed Woolworths’ solicitors that GMP Law had received instructions from the applicant to apply to the Court for a ‘solicitor’s common fund order’ at the conclusion of the proceeding either in lieu of or in addition to costs otherwise payable, in such percentage as the Court considers just. A solicitor’s common fund order provides for the whole or part of a solicitor’s remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceeding and for that liability to be discharged as a first priority from any moneys so recovered, thereby ensuring that all group members bear a proportionate share of that liability. In R&B Investments, the High Court concluded that the Federal Court does not have power to make a solicitor’s common fund order in circumstances where the solicitor’s conduct is regulated by the Legal Profession Uniform Law (as a law of the State of New South Wales) and, specifically, s 183 of that law: R&B Investments at [11] (Gageler CJ), [35] (Gordon, Steward, Gleeson, Beech-Jones JJ), [148] - [149] (Edelman J) and [181], [209] and [211] (Jagot J). Section 183 stipulates that a law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to the amount of any award or settlement that may be recovered in any proceedings to which the agreement relates. Solicitor’s conduct in respect of legal proceedings conducted in the Federal Court in Victoria is also governed by the Legal Profession Uniform Law (as a law of the State of Victoria). It follows that it is now unlikely that GMP Law will be able to seek a solicitor’s common fund order in this proceeding.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The order proposed by Woolworths is consistent with the agreement reached between the parties. The security for costs application has been adjourned indefinitely on the basis that the applicant takes no step in the proceeding until the determination of liability issues at the initial trial. If the applicant applies to the Court to take a step in the proceeding, it should be open to Woolworths to re-agitate its security for costs application. The manner in which, and time at which, each application is heard will be determined by the Court having regard to all relevant circumstances at the time that the applications are made.Conclusion In conclusion, orders will be made largely in the form proposed by the parties. In respect of the areas of disagreement, orders will be made in accordance with these reasons for judgment. Orders will also be made to facilitate consultation between the parties with respect to the giving of opt out notices to group members and for the giving of such notices. The parties have also agreed that the costs of and incidental to the making of these orders will be reserved.

Ratio Decidendi

Legal Principle Established

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