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Consumer law – misleading and deceptive conduct – representations ‘with respect to any future matter’ (ACL s4(1)(a))

One of the issues in Australian Competition and Consumer Commission v Woolworths Group Limited (formerly called Woolworths Limited) [2020] FCAFC 162 (29 September 2020) was the meaning of the phrase “with respect to any future matter” in s4(1)(a) of the Australian Consumer Law (ACL).

Background

In the period between November 2014 and November 2017 Woolworths sold in its Australian supermarkets and through its online store a range of disposable cutlery and crockery under the label ‘Select Eco’ (products).

The packaging in which the products were sold featured the statement “Biodegradable and Compostable”. That packaging also contained the statement: “Made from a renewable resource”.

The Australian Competition and Consumer Commission (ACCC) claimed that those statements represented to consumers that the products would biodegrade and compost within a reasonable time when disposed of using domestic composting or in circumstances ordinarily used for the disposal of such products, including conventional Australian landfill. The ACCC claimed that by making those representations, Woolworths engaged in misleading and deceptive conduct or conduct that was likely to mislead or deceive in contravention of s18 of the ACL.

The ACCC commenced proceedings against Woolworths in which it claimed declarations, injunctions, pecuniary penalties, publication orders and costs in respect of alleged contraventions of ss18, 29(1)(a), 29(1)(g) and 33 of the ACL. The primary judge dismissed the ACCC’s proceedings.

The issues

The resolution of the appeal turned on two critical issues: the meaning of the phrase “…with respect to any future matter” in s4(1)(a) of the ACL; and whether the representations as found or as pleaded by the ACCC were with respect to a future matter or future matters.

The appeal

The court (Foster, Wigney and Jackson JJ) noted that the term ‘future matter’ is not defined in the ACL and that s4 is in substantially the same terms as s51A of the Trade Practices Act 1974 (Cth). Whether a statement relates to a future matter depends on the words used and the context in which they are used.

The court found, consistent with many earlier first instance decisions, that “…a representation will only be with respect to a future matter if it is in the nature of a promise, forecast, prediction or other like statement about something that will only transpire in the future – that is, a representation which is not capable of being proven to be true or false when made” (at [132]).

It is always a matter of the proper characterisation of the representations actually conveyed which turns on the content of the representations in question, judged objectively in their particular context.

The appeal was dismissed.

Anthony Lo Surdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, and Outer Temple Chambers, London, Abu Dhabi and Dubai. Theresa Power is a barrister at 12 Wentworth Selborne Chambers, Sydney. The full version of these judgments can be found at austlii.edu.au.

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