Whittome v Woolworths Group Limited

This case sits in the middle of a larger dispute about Woolworths' 'Prices Dropped' promotions. The Federal Court was not yet deciding whether those promotions were misleading. Instead, it was deciding how two overlapping proceedings should be managed.

The first proceeding was brought by the ACCC. The regulator alleged that between September 2021 and May 2023 Woolworths temporarily increased the prices of at least 266 products and then promoted those products as having dropped in price, even though the promoted prices were allegedly the same as, or higher than, the prices at which the products had ordinarily been sold before the temporary increase. The ACCC said that this meant the supposed discount was illusory.

The second proceeding was a representative proceeding brought by Mr Robbie Leigh Whittome. He advanced materially the same liability allegations as the ACCC, but his case sought compensation for consumers who bought one or more of the affected products during the relevant period.

That overlap created an obvious practical problem. If both proceedings separately prepared evidence, submissions and trial steps on the same liability questions, the cost and duplication could be substantial. The Court therefore had to decide whether a coordinated structure could be put in place that was efficient but still fair to group members in the class action.

The commercial issue behind the litigation was discount advertising. The ACCC alleged that Woolworths' 'Prices Dropped' promotions conveyed that consumers were receiving a genuine discount, when in fact the promoted price was allegedly not lower than the product's ordinary earlier selling price. The regulator pleaded this as misleading conduct and false or misleading representations under the Australian Consumer Law.

The class action did not introduce a different liability theory. It relied on materially the same allegations, but sought damages for consumers rather than regulatory relief. That distinction matters. A business can face one proceeding brought by the regulator to enforce the law and another brought by customers seeking compensation, even where the underlying factual allegations are substantially the same.

The Court noted that the two proceedings raised the same issues with respect to liability, but not relief. That is why they were being jointly case managed. The Court had already made orders on 23 May 2025 for an initial trial on liability issues using a sample of affected products agreed between the parties or determined by the Court. The idea was to resolve liability issues as quickly, inexpensively and efficiently as possible, while recognising that a sample-based trial might still produce a mixed outcome and leave further steps to be taken later.

The immediate trigger for this judgment was Woolworths' application for security for costs in the representative proceeding, filed on 20 June 2025. Evidence and submissions had been filed and the application was listed for hearing on 7 August 2025. On the day before that hearing, the parties proposed consent orders that would effectively reduce the need for the applicant to actively run a separate liability case.

In broad terms, the parties wanted the liability issues in the class action to be heard together with the liability issues in the ACCC proceeding. They also wanted the applicant in the representative proceeding to take no active step without leave, and for the applicant and non-opt-out group members to be bound by the findings made on liability in the ACCC proceeding, subject to appeal rights and later orders if needed.

Justice O'Bryan accepted the commercial logic of that proposal, but did not simply approve the first draft. The reasons show that the Court questioned whether it could or should make an order saying that all liability issues in the representative proceeding would be fully and finally determined by a future judgment in the ACCC proceeding. The Court also questioned whether it could or should make a present order under s 33ZB purporting to bind group members to a future judgment. Those concerns mattered because representative proceedings involve absent group members, and the Court had to use a legally sound mechanism.

The final structure therefore relied on a combination of undertakings, case-management orders, later consequential orders if necessary, and an opt-out process so group members could be informed and decide whether to remain in the proceeding.

The Court expressly accepted that it had several available sources of power to make the procedural orders. The reasons refer to s 23 of the Federal Court of Australia Act 1976 (Cth), which gives the Court broad power to make orders it thinks appropriate in matters within its jurisdiction. The Court also referred to r 1.32 of the Federal Court Rules 2011, which allows the Court to make any order it considers appropriate in the interests of justice.

The judgment also relied on s 37P of the Federal Court of Australia Act, which gives the Court broad power to give directions about practice and procedure in pursuit of the overarching purpose in s 37M. Section 37M is the provision directed to the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

Because this was a representative proceeding, the Court also relied on s 33ZF, which allows the Court to make any order it thinks appropriate or necessary to ensure justice is done in the proceeding. The reasons describe that as a broad supplementary procedural power. The Court also referred to incidental and necessary powers recognised by authority.

Importantly, the Court did not treat s 33ZB as a present mechanism for binding group members to a future judgment before that judgment existed. Instead, the Court accepted an undertaking by the applicant on behalf of himself and non-opt-out group members, and contemplated that after the joint liability trial the parties could seek orders under s 33ZB to give effect to the position if necessary.

The Court made orders largely in the form proposed by the parties. First, it ordered that the initial trial on liability issues in the representative proceeding be heard together with the initial trial on liability issues in the ACCC proceeding. The judgment refers to this as the Joint Liability Trial.

Second, the Court ordered that the applicant is to take no step in the representative proceeding or in the ACCC proceeding, including at the Joint Liability Trial, except on application for leave, with reasonable prior notice to Woolworths, and with the specific leave of the Court. The order expressly covered steps such as seeking discovery, filing or adducing evidence, making written or oral submissions, and cross-examining witnesses.

Third, the Court ordered that at the Joint Liability Trial, the evidence in the ACCC proceeding would also be evidence in the representative proceeding.

Fourth, subject to release from the implied undertaking in the ACCC proceeding and subject to confidentiality protections, Woolworths was ordered to provide the applicant with copies of submissions, evidence and interlocutory applications filed, documents discovered, and orders made in the ACCC proceeding relating to the initial trial on liability issues. The applicant was also to have access to all transcripts of hearings in the ACCC proceeding relating to those liability issues.

Fifth, Woolworths' security for costs application was adjourned indefinitely, but with liberty to re-enliven it if the applicant later applied for leave to take a step in either proceeding.

Finally, the Court put in place a timetable for the opt-out process. The applicant had to provide proposed opt-out orders and a proposed notice by 29 August 2025. Woolworths had to respond by 3 September 2025. The parties then had to confer by 5 September 2025 and submit agreed or competing materials by 8 September 2025. The making of opt-out orders was to be addressed at a case management hearing on 10 September 2025.

The opt-out process was a central safeguard. In a representative proceeding, group members who fall within the class definition are generally included unless they opt out. Here, that mattered because the applicant had undertaken on behalf of non-opt-out group members to be bound by the findings made on liability issues in the ACCC proceeding and to consent to corresponding findings being made in the representative proceeding.

The Court therefore required a formal process to notify group members of the relevant matters and allow them to make an informed choice. The orders required the applicant to prepare proposed opt-out orders and a proposed notice under ss 33J, 33X and 33Y. Woolworths then had to respond, the parties had to confer, and the Court would deal with the final form of the opt-out orders and notice at a case management hearing.

The timing set by the Court was specific. Proposed materials from the applicant were due by 29 August 2025. Woolworths' response was due by 3 September 2025. The parties had to confer by 5 September 2025. Agreed or competing materials had to be submitted by 8 September 2025. The Court listed the issue for 10 September 2025.

The reasons explain why this mattered. Group members needed to understand the effect of the procedural arrangement before deciding whether to remain in the proceeding. The Court accepted that, with proper notice, group members could make an informed decision whether to opt out or stay in and be bound in the way proposed.

Because the applicant was agreeing not to actively run the liability case unless leave was granted, the Court had to be satisfied that group members were still adequately protected. The reasons identify several features that persuaded the Court this was so.

First, the applicant would receive substantial access to the ACCC proceeding materials. Subject to release from the implied undertaking and confidentiality arrangements, Woolworths had to provide submissions, evidence, interlocutory applications, discovered documents and orders from the ACCC proceeding relating to the initial liability trial. The applicant would also have access to transcripts. That meant the applicant could monitor how the liability case was being run.

Second, the applicant retained the right to seek leave to take a further step if necessary to protect group members' interests. The Court noted that this preserved the ability to intervene if there were gaps or some other reason to act.

Third, the opt-out process would notify group members of the effect of the arrangement, allowing them to decide whether to remain in the proceeding.

Fourth, the applicant had liberty to apply to vary the orders before judgment in the Joint Liability Trial if he formed the view that the orders no longer adequately protected group members. The Court gave an example: if the ACCC and Woolworths compromised the ACCC proceeding without the Court determining liability questions, the applicant could seek variation.

These safeguards were important to the Court's conclusion that the proposed arrangement was appropriate and consistent with the overarching purpose in s 37M.

Justice O'Bryan held that the Court had power to make orders largely in the form proposed by the parties and that it was appropriate to do so. The Court accepted that the arrangement would facilitate the determination of the liability issues as quickly, inexpensively and efficiently as possible, with a minimum of incremental cost.

The Court therefore approved a coordinated structure for the liability phase of the class action and the ACCC proceeding. But the Court also refined the legal mechanism. Rather than making a broad present order that a future ACCC judgment would fully and finally determine all liability issues in the class action, or a present s 33ZB order binding group members to a future judgment, the Court used undertakings, procedural orders and the prospect of later s 33ZB orders if needed after the Joint Liability Trial.

So the outcome was practical but careful. The Court supported efficiency, while making sure the orders rested on a sound legal footing and included protections for group members.

For business owners, the most important point is that discount promotions can create layered legal risk. A regulator may allege misleading conduct, and customers may then bring a separate compensation claim based on the same underlying facts. Even if liability has not yet been decided, the cost and complexity of defending overlapping proceedings can be significant.

The allegations in this case also show the kind of pricing conduct that attracts scrutiny. If a business advertises that a price has dropped, the business should be able to explain what comparison is being made and why it is accurate. If the earlier higher price was only temporary, or if the promoted price is not actually lower than the ordinary earlier selling price, the promotion may be challenged.

This is not just a legal drafting issue. It is an operational issue involving pricing systems, campaign approvals, record retention and internal communication between commercial, marketing and legal teams. If your business cannot quickly produce reliable pricing history, it may struggle to defend the accuracy of discount messaging.

The case also shows the importance of litigation discipline. Once proceedings begin, questions about who runs which issues, what documents are shared, how confidentiality is managed, and whether security for costs is sought can materially affect cost and strategy.

Although this judgment is procedural, it points to the kinds of business records that become important in pricing disputes. The allegations themselves turned on what products were ordinarily sold for before a promotion, whether there had been a temporary increase, and what message the promotion conveyed to consumers.

That means businesses should think carefully about how they store and retrieve pricing history across products, stores and time periods. Internal approval records for promotions can also matter, especially where a campaign uses language such as 'price dropped', 'discounted', 'now lower' or similar claims. If a regulator or claimant later asks how the comparison price was chosen, the answer should not depend on memory alone.

Campaign materials, internal emails, category management records, pricing spreadsheets and system-generated price histories may all become relevant. So may records showing whether a promotion was national or store-specific, and whether the same product had different pricing patterns in different channels.

The Court's orders about access to submissions, evidence, discovered documents and transcripts in the ACCC proceeding are a reminder that documentary control often shapes litigation outcomes. Businesses should assume that pricing records and promotional decision-making may be closely examined if a dispute develops.

This page is based on the Federal Court of Australia decision Whittome v Woolworths Group Limited [2025] FCA 1015, delivered by O'Bryan J on 26 August 2025. The published reasons identify the related ACCC proceeding, the security for costs application, the undertakings given, the opt-out timetable, the Court's reasoning on power and fairness, and the orders made.

The available text is truncated near the end of the reasons, but it contains the key procedural background, the Court's discussion of the powers relied on, the fairness considerations for group members, and the operative orders. This page therefore explains the decision as a procedural ruling and does not go beyond what is supported by the published reasons.