Australian Competition and Consumer Commission v Coles Group Limited [2014] FCA 363

Australian Competition and Consumer Commission v Coles Group Limited [2014] FCA 363

Coles Express offered and allowed a 14 cents per litre discount on a single retail fuel acquisition, but paragraph (10)(d) of the undertaking was not breached because the total 14 cents per litre discount was not wholly contingent on the past acquisition of goods or services from a Coles supermarket. Only the 4 cents per litre component was contingent on supermarket purchases, while the 10 cents per litre component was contingent on an acquisition of goods or services from Coles Express, a class excluded by the words in parentheses in paragraph (10)(d). The text of the undertaking therefore did not support the ACCC's alleged breach.

Jurisdiction
Australia
Judgment Date
14 April 2014
Procedural Posture
Proceeding Concerning Alleged Breach of an Undertaking Under S 87 B of the Competition and Consumer Act 2010 (cth) / Final Hearing of Application for Declarations; Judgment
Outcome
Application dismissed with costs.
Legal Topics
['undertaking Under S 87 B of the Competition and Consumer Act 2010 (cth)' 'construction of Undertaking' 'fuel Discount Offers' 'alleged Breach of Undertaking']
['competition and Consumer Law' 'trade Practices'] ['undertaking Under S 87 B of the Competition and Consumer Act 2010 (cth)' 'construction of Undertaking' 'fuel Discount Offers' 'alleged Breach of Undertaking']

Case Brief

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Procedural Posture

Proceeding Concerning Alleged Breach of an Undertaking Under S 87 B of the Competition and Consumer Act 2010 (cth) / Final Hearing of Application for Declarations; Judgment

Legal Issues

  1. 1 ['Whether paragraph (10)(d) of the undertaking prohibited the respondents from advertising, offering or allowing an aggregate 14 cents per litre fuel discount made up of a 4 cents per litre supermarket-based offer and a 10 cents per litre Coles Express offer.' 'Whether the aggregate 14 cents per litre discount was contingent on the past or future acquisition of goods or services from a Coles supermarket within the meaning of paragraph (10)(d) of the undertaking.']

Ratio Decidendi

Coles Express offered and allowed a 14 cents per litre discount on a single retail fuel acquisition, but paragraph (10)(d) of the undertaking was not breached because the total 14 cents per litre discount was not wholly contingent on the past acquisition of goods or services from a Coles supermarket. Only the 4 cents per litre component was contingent on supermarket purchases, while the 10 cents per litre component was contingent on an acquisition of goods or services from Coles Express, a class excluded by the words in parentheses in paragraph (10)(d). The text of the undertaking therefore did not support the ACCC's alleged breach.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The applicant pay the respondents' costs of the proceedings, as agreed or taxed."]