Australian Competition and Consumer Commission v Retail Food Group Limited [2022] FCA 961

Australian Competition and Consumer Commission v Retail Food Group Limited [2022] FCA 961

Because the Commission's corporate store case was pleaded and advanced on the basis of common, generic features across the 47 stores rather than store-specific consumer attributes, determining liability by reference to a representative sample would not disadvantage the Commission and would reduce inefficiencies and costs. A sample of 14 stores, about 30% of the cohort, was sufficiently large to exclude coincidence or lack of representativeness, especially where the respondents accepted that an agreed or randomly selected sample would be treated as representative. The sampling order best promoted the overarching purpose of the civil practice and procedure provisions.

Jurisdiction
Australia
Judgment Date
19 August 2022
Procedural Posture
Civil Regulator and Consumer Protection Proceeding Alleging Contraventions of the Australian Consumer Law and Franchising Code of Conduct / Interlocutory Application Concerning Whether Corporate Store Liability Allegations Should Be Tried and Determined by Reference to a Representative Sample
Outcome
Respondents' interlocutory application substantially allowed; corporate store liability allegations to be determined by reference to a representative sample of 14 stores, with ancillary timetable orders and costs reserved.
Legal Topics
['case Management' 'representative Sample' 'unconscionable System of Conduct or Pattern of Behaviour' 'misleading or Deceptive Conduct' 'franchising Code Good Faith Obligation' 'separate Determination of Liability']
['practice and Procedure' 'competition and Consumer Law' 'franchising'] ['case Management' 'representative Sample' 'unconscionable System of Conduct or Pattern of Behaviour' 'misleading or Deceptive Conduct' 'franchising Code Good Faith Obligation' 'separate Determination of Liability']

Case Brief

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Procedural Posture

Civil Regulator and Consumer Protection Proceeding Alleging Contraventions of the Australian Consumer Law and Franchising Code of Conduct / Interlocutory Application Concerning Whether Corporate Store Liability Allegations Should Be Tried and Determined by Reference to a Representative Sample

Legal Issues

  1. 1 ['Whether the liability of the respondents for the conduct or behaviour alleged in Parts C and D of the amended statement of claim should be determined by reference to a sample of the 47 stores.' 'Whether use of a representative sample would promote the overarching purpose of the civil practice and procedure provisions by facilitating just, quick, inexpensive and efficient resolution of the dispute.' 'What sample size and method of selection should be ordered if sampling is permitted.']

Ratio Decidendi

Because the Commission's corporate store case was pleaded and advanced on the basis of common, generic features across the 47 stores rather than store-specific consumer attributes, determining liability by reference to a representative sample would not disadvantage the Commission and would reduce inefficiencies and costs. A sample of 14 stores, about 30% of the cohort, was sufficiently large to exclude coincidence or lack of representativeness, especially where the respondents accepted that an agreed or randomly selected sample would be treated as representative. The sampling order best promoted the overarching purpose of the civil practice and procedure provisions.

Court Disposition

Respondents' interlocutory application substantially allowed; corporate store liability allegations to be determined by reference to a representative sample of 14 stores, with ancillary timetable orders and costs reserved.

Orders

  • ['The liability of the respondents for the conduct or behaviour the subject of the allegations in Parts C and D of the amended statement of claim be determined by reference to a sample of 14 of the 47 stores.' 'Within 14 days of these orders, the applicant nominate the 14 stores for inclusion in the sample.' 'The...