AFT Pharmaceuticals (AU) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 3) [2020] FCA 1352

AFT Pharmaceuticals (AU) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 3) [2020] FCA 1352

AFT's proposed declarations were refused as they did not accurately reflect the liability judgment and risked creating confusion on the adequacy of scientific foundation for representations. Corrective advertising was refused due to lack of evidence regarding ongoing public misapprehension and risk of punitive effect. Costs were awarded in favour of Reckitt on a party-party basis as Reckitt succeeded in its cross-claim and AFT failed in its application; no indemnity costs granted in absence of evidence regarding breach context but leave granted for future application post-contempt proceedings.

Parties
Applicant/cross Respondent: AFT Pharmaceuticals (AU) Pty Ltd; Respondent/cross Claimant: Reckitt Benckiser (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
24 September 2020
Procedural Posture
Commercial and Corporations / Final Orders Following Liability Judgment and Cross Claim Determination
Outcome
AFT's application dismissed; cross-claim by Reckitt granted in part; costs awarded in Reckitt's favour on a party-party basis; injunctive relief granted against AFT; leave to seek indemnity costs following determination of contempt proceedings.
Legal Topics
Misleading or Deceptive Conduct, Misrepresentation in Advertising, Injunctive Relief, Corrective Advertising, Costs
Consumer Law Commercial Law Misleading or Deceptive Conduct Misrepresentation in Advertising Injunctive Relief Corrective Advertising Costs

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Parties

AFT Pharmaceuticals (AU) Pty Ltd

Applicant/cross Respondent

Reckitt Benckiser (Australia) Pty Ltd

Respondent/cross Claimant

Procedural Posture

Commercial and Corporations / Final Orders Following Liability Judgment and Cross Claim Determination

Legal Issues

  1. 1 Whether final orders and declarations should reflect the liability judgment findings
  2. 2 Whether injunctive and corrective advertising orders should be made
  3. 3 The appropriate allocation of costs, including indemnity costs

Ratio Decidendi

AFT's proposed declarations were refused as they did not accurately reflect the liability judgment and risked creating confusion on the adequacy of scientific foundation for representations. Corrective advertising was refused due to lack of evidence regarding ongoing public misapprehension and risk of punitive effect. Costs were awarded in favour of Reckitt on a party-party basis as Reckitt succeeded in its cross-claim and AFT failed in its application; no indemnity costs granted in absence of evidence regarding breach context but leave granted for future application post-contempt proceedings.

Court Disposition

AFT's application dismissed; cross-claim by Reckitt granted in part; costs awarded in Reckitt's favour on a party-party basis; injunctive relief granted against AFT; leave to seek indemnity costs following determination of contempt proceedings.

Orders

  • The applicant's (AFT) application dated 21 February 2019 is dismissed.
  • Declarations made in terms of findings against AFT regarding misleading representations (as set out in the orders).