Australian Competition and Consumer Commission v Prouds
Jewellers Pty Ltd  FCA 75
Dual pricing involving "was" and "now"
price comparisons held to be misleading and deceptive where
products not sold at "was" price just before
While there can be no precision about the length of the
anterior period during which the products were offered at the
"was" price, it must be a period of substance and two
months were thought to be sufficient.
Ever wondered how genuine the discounts offered by jewellery
chains are? ACCC contends this common method of promotion in the
industry is misleading and deceptive. In these proceedings, the
ACCC successfully alleged that Prouds had contravened sections 52
and 53 of the Trade Practices Act.
For international readers, Prouds is the largest speciality
jewellery chain across Australia and New Zealand with over 200
stores, and was established in 1903. It regularly publishes and
distributes catalogues to the public promoting the sale of a range
of jewellery items and offering each item for sale at a price
described as a "now" price near a picture of the item and
another price described as the "was" price. The
"was" price is higher, and often much higher, than the
"now" price. In substance, discounting occurred
throughout the entire calendar year.
The essence of ACCC's complaint was that the "was"
price would be viewed a the usual price at which item would have
been purchased before the sale period. Historically, however, each
item was often sold for less. Accordingly, the "was"
price was misleading because it suggested that a consumer would
save the difference between the "was" price and the
The relevant audience
The ACCC said that some of the general public who received the
Prouds' catalogue would have been misled or deceived by
Prouds' conduct, namely consumers without experience in
purchasing jewellery and without knowledge of the Australian
jewellery industry or Prouds' pricing or promotion
Justice Moore accepted that the evidence established there were
consumers with these various characteristics.
The meaning of the representations
How would consumers have understood the "was" and
"now" prices? Prouds contended that the "was"
price would have been understood to be the price at which each item
had been offered for sale.
Justice Moore agreed with the ACCC that the hypothetical
consumer would considered the "was" price was the price
at which the goods were being offered for sale. Justice Moore
disagreed with Prouds' defence that it was unnecessary for an
item to have been offered for sale at the "was" price
immediately before" the sale: "Part of this defence was
to argue that the word "was" was an example of the
"simple past or aorist tense" and it did "not have
any connotation of when in the past the event occurred". I do
He noted that the "was" price did not appear in
isolation but appeared in juxtaposition with a "now"
price. The message conveyed in this context was that the item,
immediately before the sale, would have been offered for sale and
purchased for the "was" price. He stated: "It was
misleading to identify in the catalogue a "was" price
which did not represent the price at which an item had been offered
for sale and would have been purchased by the hypothetical consumer
immediately before the sale commenced".
So how long should the jewellery had been offered at the
Justice Moore thought that a period of two months was an
appropriate period. While Justice Moore noted that there could be
no precision about the length of the anterior period, it must
represent "a period of substance". If the period was
unduly short (or presumably in the distant past), then the
publication of the "was" price in the context of dual
pricing would remain misleading or deceptive.
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about your specific circumstances.
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