FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Coles Group Limited [2014] FCA 363
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IN THE FEDERAL COURT OF AUSTRALIA |
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AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant |
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AND: |
First Respondent COLES SUPERMARKETS AUSTRALIA PTY LTD Second Respondent EUREKA OPERATIONS PTY LTD Third Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant pay the respondents’ costs of the proceedings, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 202 of 2014 |
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant |
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AND: |
COLES GROUP LIMITED First Respondent COLES SUPERMARKETS AUSTRALIA PTY LTD Second Respondent EUREKA OPERATIONS PTY LTD Third Respondent |
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JUDGE: |
ROBERTSON J |
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DATE: |
14 APRIL 2014 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
Introduction
1 These proceedings were heard with similar proceedings involving Woolworths Limited: see Australian Competition and Consumer Commission v Woolworths Limited [2014] FCA 364. They concern the proper construction of paragraph (10)(d) of an undertaking given by the respondents to the Australian Competition and Consumer Commission (the ACCC) on 6 December 2013 under s 87B of the Competition and Consumer Act 2010 (Cth) (the Undertaking).
2 The parties to the Undertaking are the first respondent (Coles), the second respondent (Coles Supermarkets) and the third respondent (Eureka Operations (Coles Express)). By paragraph (9) of the Undertaking, Coles, on its own behalf and on behalf of Coles Supermarkets, Coles Express and its other subsidiaries, undertook to assume the obligations set out in paragraph (10), subject to the transitional arrangements in paragraph (11) and the exception in paragraph (12).
3 The central provision of the Undertaking is as follows:
(10) Coles undertakes for the purposes of section 87B of the Act, that from the Commencement Date, it will not, and will ensure that its subsidiaries do not:
(a) make any offer pursuant to which a person may obtain a discount on their acquisition at retail of petrol, diesel or LPG; or
(b) allow any discount to a customer on their acquisition at retail of petrol, diesel or LPG,
where the discount is:
(c) funded in whole or in part (and whether by way of cents per litre or product contribution) by Coles (except Coles Express) or by any business unit or division within Coles or a subsidiary of Coles (except Coles Express) that retails products or services other than fuel, including without limitation a supermarket business; or
(d) on any single acquisition greater than 4 cents per litre or the equivalent of 4 cents per litre and contingent on the past or future acquisition of other goods or services (except goods or services acquired from a petrol station operated by Coles Express, or from a business physically located and operated in conjunction with the petrol station (such as a convenience store, car wash, or fast food outlet)).
The facts
4 Since about July 2003 a customer at a participating Coles store (excluding Coles Express), by spending a qualifying amount in one transaction at such a store, has been able to receive an offer for discounted fuel (Fuel Discount Offer). The Fuel Discount Offer amount for which the customer will qualify is printed on the customer’s receipt. One receipt entitles the customer to a discount off the pump price of fuel from Coles Express service stations for one vehicle. The Fuel Discount Offer was stated to be not valid in conjunction with any other fuel offers or discounts unless specified otherwise. The qualifying amount was $30 or more. The entitlement to redeem the discount expires 28 days after the voucher is issued. The Fuel Discount Offer has generally been 4 cents per litre. At certain times before 1 January 2014, the discount of 4 cents per litre was increased to 8 cents per litre. Since 1 January 2014, the 4 cents per litre offer has been wholly funded by Coles Express. Prior to 1 January 2014, Coles Supermarkets typically bore 75% of the cost of the offer by way of internal rebate from Coles Supermarkets to Coles Express, although this proportion changed from time to time.
5 In the period from about 6 February 2014 to 5 March 2014, Coles Express made an offer whereby a customer could obtain a discount of 10 cents per litre on a single retail acquisition of petrol, diesel or LPG at Coles Express. The terms and conditions of the offer were that for a purchase to be a Qualifying Purchase, $20 had to be spent on in-store items at Coles Express, excluding fuel, tobacco, gift cards, mobile phone, recharge and lottery. The 10 cents per litre discount off fuel was required to be in the same transaction as the Qualifying Purchase. Coles Express wholly funded the 10 cents per litre offer.
6 The matter at the centre of the controversy between the parties is that Coles Express advertised, as reproduced below, that a purchaser of fuel could save 14 cents per litre on a single purchase of fuel by saving 10 cents per litre when spending $20 or more on groceries in one transaction at Coles Express and using at the same time the fuel discount receipt of 4 cents per litre received when spending $30 or more in one transaction at a Coles Supermarket. It follows that there was a “specification otherwise” in that the Fuel Discount Offer was said to be valid in conjunction with this other fuel offer or discount. Where the customer met both sets of conditions the result was that there was an offer pursuant to which the customer might obtain a discount of 14 cents per litre on their acquisition at retail of fuel and, if that offer were taken up, the allowance of a discount to that customer on their acquisition at retail of fuel of 14 cents per litre.
A similar advertisement appeared in a Coles supermarket catalogue.
The legislation
7 Section 87B of the Competition and Consumer Act provides:
87B Enforcement of undertakings
(1) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the Commission has a power or function under this Act (other than Part X).
(1A) The Commission may accept a written undertaking given by a person for the purposes of this section in connection with a clearance or an authorisation under Division 3 of Part VII.
(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Commission.
(3) If the Commission considers that the person who gave the undertaking has breached any of its terms, the Commission may apply to the Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
The present litigation
8 The proceedings were commenced on 25 February 2014.
9 The ACCC claimed the following relief:
1. A declaration that by advertising and promoting the following two offers together:
1.1 an offer pursuant to which a person may obtain a discount on their acquisition at retail of petrol, diesel or LPG, where the discount is 4 cents per litre which is contingent on the customer spending $30 or more on goods or services in a supermarket operated by the Second Respondent (4 cpl offer); and
1.2 an offer pursuant to which a person may obtain a discount on their acquisition at retail of petrol, diesel or LPG, where the discount is 10 cents per litre which is contingent on the customer spending $20 or more on goods or services in a petrol station operated by the Third Respondent (10 cpl offer),
the Respondents have made an offer, pursuant to which a customer could obtain a discount of 14 cents per litre on a single acquisition of petrol, diesel or LPG which was contingent on the previous acquisition of goods or services from a supermarket or website operated by the Second Respondent, in breach of clause 10 of the Undertaking given by the Respondents to the Applicant on 6 December 2013 (Undertaking).
2. A declaration that the Third Respondent’s conduct in allowing a discount of 14 cents per litre on a single acquisition of petrol, diesel or LPG to a customer, who satisfies the terms of both the 4 cpl offer and the 10 cpl offer, is in breach of clause 10 of the Undertaking.
3. A declaration that the First Respondent’s conduct in failing to prevent the Third Respondent from allowing a discount of 14 cents per litre on a single acquisition of petrol, diesel or LPG to a customer, who satisfies the terms of both the 4 cpl offer and the 10 cpl offer, is in breach of clause 10 of the Undertaking.
The parties’ submissions
10 The applicant, the ACCC, submitted that undertakings accepted under s 87B were properly to be regarded as statutory instruments: Australian Petroleum Pty Ltd v Australian Competition and Consumer Commission (1997) 73 FCR 75 at 88–89. Accordingly, it was submitted, the words of an undertaking were to be construed by reference to the principles of construction of a legislative document, and not by reference to the principles of construction of a private contract: Toll Holdings Ltd v Australian Competition and Consumer Commission (2009) 256 ALR 631, 638–639 [17]–[18]. The exercise of construction began and ended with the text — read always in context, it was submitted: Maloney v The Queen (2013) 298 ALR 308, 398 [324] per Gageler J.
11 The ACCC submitted that by advertising the total discount of 14 cents per litre, the respondents had offered that total discount, including to their supermarket customers. The ‘discount’ being ‘allowed’ by Coles Express, on transactions in which the customer satisfied the terms of both the 4 cents per litre offer and the 10 cents per litre offer was 14 cents per litre which was, self-evidently, ‘greater than 4 cents per litre’. Correspondingly, the ‘discount’ ‘offered’ by the respondents (in the sense of presented or proffered for customers and potential customers to accept or reject as desired) in making or promoting the two offers was 14 cents per litre.
12 The ACCC submitted that the critical question was whether the 14 cents per litre discount allowed by the respondents on some transactions (and also offered to all potential customers) was one which was “contingent on the past or future acquisition of other goods or services”, in particular goods acquired from Coles’ businesses other than Coles Express. There was no requirement, it was submitted, in paragraph (10)(d) of the Undertaking that the only, or sole, circumstance or contingency be the acquisition of other goods or services. It was enough if there was a circumstance, or contingency, which was the acquisition of the requisite “other goods or services”.
13 There were two conditions which, both being met, enabled the customer to obtain a discount of 14 cents per litre on a single acquisition of fuel pursuant to the terms of the 4 cents per litre offer and the 10 cents per litre offer: (a) acquiring goods or services worth $30 or more from a participating Coles Group store or website operated by Coles Supermarkets; and (b) spending $20 or more on goods or services on in-store items at a store operated by Coles Express where the purchase was in the same transaction as the discount.
14 The written submissions on behalf of the ACCC included the following (adapted by incorporating a footnote into the text of the paragraph):
14. The first of these conditions is, of course, squarely within the terms of subclause 10(d) of the Undertaking. That is enough to place the offering and allowing of a 14 cents per litre discount in contravention of clause 10, because quantum is a necessary element of the ‘discount’; and the discount of 14 cents (rather than a lesser discount) is obtained only by having obtained goods or services from other Coles group stores. It is not to the point that the terms and conditions of the 10 cpl offer make a 10 cents per litre discount available to a customer who has not acquired goods or services at a participating Coles Group store, [or indeed that the 10 cpl offer, considered in isolation, would come within the express words of exception in subclause 10(d),] and that it is accordingly possible to describe the 14 cents per litre total discount as involving two elements, only one of which is ‘contingent’ upon such an acquisition. Clause 10(b) and (d), at least, look to the total discount allowed on a transaction.
15 In oral submissions, senior counsel for the ACCC made four points about the notion of contingency in paragraph (10)(d). The first point was that in context, “contingent” could not mean solely contingent since there would inevitably be other contingencies, such as making a purchase of fuel at a participating service station. Second, the words in parentheses subtracted from the class of goods and services the purchase of which comprised the contingency or the relevant contingency but they did not take a discount or part of a discount that related to purchases from a fuel station outside the paragraph. Third, paragraph (10)(d) did not use the language “in whole or in part” as paragraph (10)(c) did as “contingent” was not a word that, in its ordinary meaning, called to mind matters of gradation or matters of degree. A discount was either contingent on something, a supermarket purchase, or not. The discount was relevantly contingent if the supermarket purchase was one of the things that must occur in order for the discount to be allowed. Fourth, the discount with which paragraph (10)(d) was concerned was the price reduction which was allowed to a customer in a transaction for the purposes of paragraph (10)(b). The question to be asked was whether that discount, rather than subsets or elements of it, was contingent on the supermarket purchase having been made. Further, it was clear enough from the first line of paragraph (10)(d) that the quantum of the discount was a critical element of it upon which the subparagraph fastened and the phrase “contingent on” needed to be read in that light. The question then posed was whether the amount of the discount actually given was dependent on a supermarket purchase having been made. In the case of a customer who had been to the supermarket and sought to enjoy the benefits of both components, the discount the customer obtained, that is, the quantum of price reduction that he or she obtained, was a direct function of the existence of the supermarket purchase sufficient to make it contingent in the relevant sense.
16 The respondents agreed with the submission of the ACCC that undertakings accepted under s 87B were properly to be regarded as statutory instruments but submitted that undertakings had some special features apparent from the terms of the section. It was clear that an undertaking was a consensual arrangement. While it had some elements of a private agreement, it did attract the powers of the Court in the event there was a breach and it was relevant to note that breach of the instrument may lead to serious penalties.
17 The respondents submitted that the 4 cents per litre supermarket offer and the 10 cents per litre offer were separate offers. Each was capable of acceptance on its own terms and conditions independently of the other. In accordance with paragraph (10) of the Undertaking: (a) each offer was wholly funded by Coles Express; (b) only the 4 cents per litre supermarket offer was contingent on supermarket purchases; and (c) the 10 cents per litre offer was contingent only on an acquisition of goods or services from Coles Express, and this remained so regardless of whether it was allowed alone or together with any other discount. The respondents submitted that the Undertaking was never intended to apply, and had no application, to the case where two different discounts governed by different contingencies, each conceded to be compliant with the Undertaking, were available to a customer to aggregate on a single fuel acquisition so that the customer made an overall saving.
18 The respondents submitted that the purpose or object of the Undertaking was to prohibit cross-subsidisation by the supermarkets of fuel discount offers and the offering of discounts conditional on supermarket purchases greater than 4 cents per litre. Whether analysed separately or together, the offers did not give rise to the mischief which the Undertaking sought to remedy.
19 The respondents submitted that the heart of the controversy was whether the Undertaking prohibited them from allowing a customer to redeem a discount offer of up to 4 cents per litre which was contingent on the acquisition of non-Coles Express goods or services and wholly funded by Coles Express, at the same time as he or she accepted an independent offer which was contingent only on Coles Express purchases and also was wholly funded by Coles Express.
20 The respondents did not accept that the 4 cents per litre and 10 cents per litre offers had been advertised together as a combined 14 cents per litre discount offer. The respondent submitted that the ACCC contended that by the respondents advertising and promoting together separate offers (neither of which was itself prohibited by the Undertaking), the offers should be treated as if they had somehow merged into a single offer and that that notional offer should be treated as if it were governed by a single melded contingency, namely the acquisition of goods and services from Coles Express and/or Coles Supermarkets. The respondents submitted that the ACCC did not explain how the advertisements, promoting each of the two separate offers, were said to have achieved that outcome.
21 The respondents submitted that the offers in question were, on the evidence, clearly separate offers, each capable of acceptance on its own separate terms and conditions independently of the other. This was plain from the details of the respective terms and conditions. It was also clear, it was submitted, from the way in which the offers had been advertised or promoted. The advertisements referred separately to the offers, including a short summary of the essential and distinct terms and conditions of each and described the 10 cents per litre offer, but not the 4 cents per litre supermarket offer, as being available “instantly”.
22 Only the 4 cents per litre supermarket offer was contingent on the acquisition of goods or services other than Coles Express goods or services. The 10 cents per litre offer was not contingent on any such acquisition. A person was able to qualify for, and redeem, the 10 cents per litre offer regardless of whether he or she had in his or her possession a 4 cents per litre supermarket offer voucher. Conversely, if he or she had a 4 cents per litre supermarket voucher, it could be redeemed by the holder regardless of whether he or she chose to use the voucher in a transaction which qualified for the separate 10 cents per litre offer.
23 The respondents submitted that the discount of 14 cents per litre was not obtained only by having obtained goods or services from other Coles group stores. Of the aggregate discount, 10 cents was only obtainable by purchasing goods from Coles Express. The separateness of the discounts and their respective contingencies was evident from the timing point. Moreover, it was submitted, if the Undertaking had been intended to prohibit the aggregation of two different discounts in respect of a single fuel acquisition, where one discount was contingent solely on acquisitions of non-Coles Express goods or services, and the other discount was contingent solely on the acquisition of Coles Express goods or services, explicit words to that effect would have been included. There was no language in paragraph (10)(d) equivalent to the words in paragraph (10)(c) “in whole or in part”, indicating that it was not intended to prevent the redemption of the two different discount offers in question (neither of which was itself prohibited) on the same occasion.
24 The respondents referred to the mischief which the Undertaking was seeking to remedy. The crux of the issue in dispute was said to be the cross-subsidisation by the supermarket businesses of fuel discount offers. The other aspect was the supermarket businesses offering fuel discounts in excess of 4 cents per litre which were conditional or contingent upon purchases from supermarkets at or above specified levels. Having regard to the proper context, the respondents submitted it was understandable and intended that paragraph (10) of the Undertaking did not include any prohibition or restriction on fuel discount offers of greater than 4 cents per litre which were wholly funded by Coles Express and contingent only on acquisition of Coles Express goods or services (such as the 10 cents per litre offer, which the ACCC conceded was not itself prohibited by the Undertaking). For the same reasons, the respondents submitted, the Undertaking did not prohibit or regulate the advertisement or promotion of fuel discount offers based on different contingencies, or the allowance of their redemption on a single fuel acquisition. The 4 cents per litre supermarket offer was long-standing in the marketplace at the time the Undertaking was given and accepted. No prohibition upon the making or allowing of the 4 cents per litre supermarket offer together with another (non-prohibited) offer was included within the Undertaking because such a combination was never a matter of concern and there was no intention to prohibit it.
25 The respondents also submitted that the terms of s 87B(4) were relevant to the task of construction since clear words would be required to impose a penal sanction on conduct, especially conduct that involved no anti-competitive vice.
26 In oral submissions, senior counsel for the respondents emphasised that the offers were different not just in terms of the nature of the conditions but also in the timing of the offer contingencies: the supermarket purchases involve the fuel discount offer taking the form of a voucher or receipt redeemable at a Coles Express service station, whereas the offer at the Coles Express outlets was instantly available and indeed was required to be availed of in the same transaction.
27 Senior counsel for the respondents referred to some evidence the Chairman of the ACCC gave to the Economics Legislation Committee of the Senate on 20 November 2013 and also to a media release by the ACCC dated 6 December 2013 as relevant to the question of construction. He submitted that the mischief was narrow and specific and had two aspects, both of which concerned the link with supermarket purchases. The first link was that there was a funding cross-subsidisation. The second was a related concern that there was a commercial cross-subsidisation in the sense that discounts were being offered which were contingent on supermarket purchases in a qualifying sum. It was quite clear that to offer a discount greater than 4 cents that was contingent on the purchase of goods at the Coles Express outlet where those purchases were made at the same time as purchasing the fuel was outside the mischief.
28 Senior counsel for the respondents submitted that paragraph (10)(d) contained a prohibition that only applied to one defined type of offer or discount that was claimable on a single petrol acquisition. That type was defined by several cumulative requirements: the first was that the prohibition only related to a discount to the extent to which it exceeded 4 cents per litre; second, to the extent to which any offer or discount exceeded 4 cents per litre, to fall within the prohibition that part of it must be contingent on the past or future acquisition of supermarket goods or services and the contingency was defined by the terms and conditions of the offer; third, the words in parentheses meant that if there was a discount greater than 4 cents per litre then, to the extent that the discount exceeded 4 cents per litre but was contingent on a past or future acquisition of goods or services from Coles Express, it was entirely outside the scope of the prohibition. It was only if a discount, to the extent it exceeded 4 cents, was contingent on supermarket purchases that it fell within the scope of the prohibition at all.
29 Senior counsel for the respondents submitted, in relation to paragraph 14 of the written submissions on behalf of the ACCC which I have set out at [14] above, that the paragraph loosely bundled together the two distinct conditions arising from two different offers and two different contingencies. The proposition that “[t]he discount of 14 cents (rather than a lesser discount) is obtained only by having obtained goods or services from other Coles group stores” was, it was submitted, entirely inaccurate. A discount of 4 cents was obtained only by virtue of having obtained goods and services from supermarkets or other Coles stores, not being the petrol station. Any discount that exceeded 4 cents was obtained only by having obtained goods or services from Coles Express in the petrol station, in relation to the same transaction.
30 The next proposition in paragraph 14, “[i]t is not to the point that the terms and conditions of the 10 cpl offer make a 10 cents per litre discount available to a customer who has not acquired goods or services at a participating Coles Group store”, senior counsel for the respondents submitted, was equally invalid. In fact, the terms and conditions of the 10 cents per litre offer made it available only to a customer who had acquired goods or services at a Coles Express store so it was a rewriting of the contingency that governs the 10 cents component of the discount. The sentence seemed to be saying that the fact that 10 cents of the overall saving of 14 cents was only available to a customer who had acquired Coles Express goods was not to the point because the contingency should be read as if it were a contingency that the customer gets 10 cents if the customer had not acquired goods or services at a supermarket. But this was to conflate the different contingencies governing the different components of the overall saving. It was submitted there were, and remained throughout, different discounts governed by different contingencies. As to the ACCC submission that paragraph (10)(b) and (d), at least, look to the total discount allowed on a transaction, senior counsel for the respondents submitted that there was no combined contingency involving two elements. It was not, he submitted, a contingency that the customer gets 14 cents if the customer purchases either some goods from a supermarket or some goods from Coles Express but that was how the ACCC sought to rewrite it.
31 As to the four points made by senior counsel for the ACCC, which I have set out at [15] above, senior counsel for the respondents submitted that the first point amounted to a conflation of the legal and factual position as there was a sole contingency governing 10 cents per litre and there was a different sole contingency governing 4 cents per litre; the second proposition as to the carve out, the words in parentheses, came back to a similar attempt to conflate two different contingencies; third, the absence of any reference to “in whole or in part” in paragraph (10)(d) supported the respondents’ construction; and the fourth point went back to the proposition that discount simply meant the overall saving.
Consideration
32 I turn to apply paragraph (10) of the Undertaking to the facts. (No separate issue arises in relation to paragraph (10)(c) of the Undertaking. It is an alternative to paragraph (10)(d) as indicated by the word “or” appearing between the two subparagraphs. The ACCC submitted that, in very general terms, the paragraph was directed at cross-subsidising, a discount funded by the supermarket business, and it made no allegation that that was what was occurring or had occurred.)
33 The first question is whether the respondents either made an offer pursuant to which a person may obtain a discount on their acquisition at retail of fuel or allowed any discount to a customer on their acquisition at retail of fuel. The second aspect of that matter is whether the discount was 14 cents per litre.
34 In my opinion Coles Express allowed a discount of 14 cents per litre to its customers on their acquisition at retail of fuel. That was the difference between the price specified on the pumps and what the customer paid in a particular transaction.
35 Also, in my opinion, Coles Express made an offer pursuant to which persons might obtain that discount of 14 cents per litre on their acquisition at retail of fuel. That is the offer at the point of sale or acquisition.
36 It follows that the discount on any single acquisition at retail of fuel was 14 cents per litre and therefore greater than 4 cents per litre.
37 In my view it is not to the point that the discount has its source in two offers, one in an acquisition by a customer at a supermarket and the other in an acquisition by a customer at a Coles Express fuel station. It is also not to the point that analysed separately there was one offer from Coles of 4 cents per litre and another offer from Coles Express where the offer from Coles Express was 10 cents per litre. That, in my opinion, is to focus on the wrong offer. The offer in question is the offer which led to the allowance of the discount of 14 cents per litre to a customer on the customer’s acquisition at retail of fuel on any single acquisition.
38 However, the dispositive question is whether the discount of 14 cents per litre on any single acquisition at retail of fuel greater than 4 cents per litre was contingent on the past or future acquisition of other goods or services (except those acquired from a petrol station operated by Coles Express).
39 In my opinion the words “contingent on” in the Undertaking mean “conditional on” or “dependent on” since there is here nothing which is referable to chance or accident.
40 But the discount is contingent only in part on the past acquisition of other goods from Coles (other than goods acquired from a petrol station operated by Coles Express). That part is not greater than 4 cents per litre.
41 Although the (total) discount would not be 14 cents per litre without the past acquisition of other goods or services from a Coles supermarket, that, in my view, does not make the entirety of the discount of 14 cents contingent on that past acquisition of other goods or services.
42 In my opinion, 4 cents per litre of the offer only was contingent on supermarket purchases and 10 cents per litre of the offer only was contingent on an acquisition of goods or services from Coles Express.
43 In my opinion the words in parentheses in paragraph (10)(d) “(except goods or services acquired from a petrol station operated by Coles Express …)” qualify the word “contingent” in the sense that they operate to exclude a class of goods or services from the contingency.
44 I accept it would be unrealistic to assume that a person acquiring goods from a Coles supermarket would have been unaware that the docket could be used at a Coles Express fuel station where Coles Express would allow a discount on any single acquisition at retail of fuel greater than 4 cents per litre and that, when combined with the consequence of a Qualifying Purchase from Coles Express the total discount would be greater than 4 cents per litre. As set out in [6] above, that offer appeared in advertising both by Coles Express and by Coles supermarkets. However this does not mean, in my opinion, that that total offer or allowance of 14 cents per litre was contingent on the past acquisition of non-fuel goods or services, that is, from Coles supermarkets. Neither does it mean that the offer or allowance of 10 cents per litre of that offer was so contingent.
45 In my opinion, there is no more than a factual linkage between a supermarket-based offer and the size of the discount at the service station but there is not the contingency set out in the Undertaking. While I can understand the ACCC’s submission that, from the policy perspective of the ACCC, paragraph (10)(d) was directed at the offering of large discounts to customers of the supermarkets, that is, the use by Coles of its large supermarket customer base to bring people into co-branded service stations and away from other service stations, the text of the Undertaking does not support the conclusion that here the discount on any single acquisition greater than 4 cents per litre (10 cents) was contingent on the past acquisition of goods or services from a Coles supermarket.
Conclusion
46 For these reasons, I dismiss the application and order that the applicant, the ACCC, pay the respondents’ costs of the proceedings, as agreed or taxed.
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I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. |
Associate:
