‘Doesn’t the case have to fail?’: Judge interrupts closing statement in Coles trial | ‘Doesn’…

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'Doesn't the case have to fail?': Judge interrupts closing statement in Coles trial

Coles is being questioned by the ACCC over its "Down Down" promotion, and whether the prices were misleading. (Supplied)

The judge overseeing a bombshell federal court case has made a stunning intervention as the consumer watchdog makes closing arguments.

The ACCC has been outlining why it believes Coles broke the law by misleading shoppers with fake discounts on hundreds of items.

During the week-long trial the consumer watchdog alleged the supermarket giant jacked up prices briefly before dropping them to a higher-than-original price under the "Down Down" promotion.

But this morning Justice Michael O'Bryan interrupted the ACCC's legal counsel Garry Rich a short time into his address.

‘Doesn’t the commission’s case have to fail?’ ACCC faces critical questions in Coles case

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The Australian Competition and Consumer Commission’s case that Coles misled customers with its “Down Down” promotions has faced a wall of critical questioning, with the judge hearing the case interrogating whether it has failed to prove its central allegation.

On Wednesday, Justice Michael O’Bryan probed the commission’s claims that customers had been duped into thinking prices marked as “Down Down” represented a good deal, and were being offered for less than what the associated items were selling for weeks earlier.

The judge said the commission had not formally argued the tickets conveyed those meanings as part of its case, or proved them to be misleading. “If they are the two primary representations communicated by the [pricing] ticket … doesn’t the commission’s case have to fail?” O’Bryan asked.

ACCC argues Coles’ ‘Down Down’ actually meant ‘up, down, prices are up’

Coles never intended to sell products at new higher prices after receiving requests from suppliers and did so only as a tactic to push through smaller increases advertised as a discount, the competition regulator alleges.

Garry Rich, SC, representing the Australian Competition and Consumer Commission, said the supermarket giant adopted this tactic because it knew its “Down Down” promotion was more profitable and led to more sales than offering the product at the same price but advertising a discount.

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