None of it strikes me as nefarious or inherently misleading
In a Federal Court hearing that may redefine the boundaries of consumer protection in Australian retail, Justice Michael O'Bryan questioned whether Woolworths' Prices Dropped promotions were inherently deceptive, or whether the real issue lies in how a reference price is established and for how long. The ACCC, which brought the case on behalf of shoppers who believed they were receiving genuine discounts on over 260 items, found its central argument tested by a judge more interested in the legitimacy of the 'was' price than in the optics of the discount itself. At stake is not merely one supermarket's promotional strategy, but the standard by which courts will measure honesty in the marketplace.
- The ACCC's closing argument was interrupted almost immediately, with the judge signalling deep scepticism before the watchdog's case could fully unfold.
- Justice O'Bryan's repeated challenges exposed a fault line at the heart of the case: the difference between a price that looks deceptive and one that is legally proven to be so.
- Woolworths' counsel argued the higher 'was' prices were grounded in genuine supplier negotiations and real sales volumes, not manufactured to inflate the appearance of a discount.
- The ACCC's own concession — that a six-month holding period for the higher price would have ended the case — appeared to shift the terrain from deception to timing.
- With judgment also reserved on a parallel case against Coles, the court's eventual ruling threatens to redraw the line between clever marketing and unlawful consumer misleading across the entire sector.
Inside the Federal Court on Thursday, Justice Michael O'Bryan wasted little time signalling his doubts about the ACCC's case against Woolworths. Interrupting senior counsel Michael Hodge KC early and often, the judge made clear he did not find the supermarket's Prices Dropped promotional scheme inherently nefarious or misleading on its face.
The ACCC's argument rests on a seemingly simple premise: when shoppers saw a Prices Dropped ticket showing a 'was' price, they believed they were receiving a genuine discount. In reality, the watchdog claims, the reference price was often higher than what the product had previously sold for — a manipulation designed to create the illusion of savings. Hodge maintained that this representation alone was what made the conduct misleading.
But Justice O'Bryan steered the inquiry elsewhere. In his view, the more important question was whether the higher 'was' price had been legitimately established — how it was chosen, how genuine it was, and how long it had been on offer. A telling concession from Hodge sharpened this point: had Woolworths held the higher prices for six months before discounting them, the ACCC would never have brought the case at all.
Woolworths argued its higher prices were not invented. The company pointed to substantial sales volumes at those prices and to supplier-driven cost increases as the basis for the reference figures. The judge appeared receptive, noting the prices had emerged from genuine commercial negotiations rather than arbitrary inflation. Hodge disputed this reading of the evidence, arguing the prices were selected precisely to construct a favourable 'was' figure for the discount, not to reflect any enduring market reality.
The case runs alongside a similar action against Coles, on which the judge has already reserved judgment. In a rare lighter moment, O'Bryan repeatedly confused the two supermarket chains mid-sentence, catching himself each time with an apologetic laugh. The levity was brief. As the hearing continues, the ACCC faces a court that appears more interested in the architecture of a price than in the impression it leaves on a shopper — a distinction that could quietly reshape consumer protection law in Australia.
Inside the Federal Court on Thursday, the judge overseeing Australia's high-stakes case against Woolworths began dismantling the consumer watchdog's argument almost as soon as closing remarks began. Justice Michael O'Bryan interrupted the ACCC's legal counsel Michael Hodge KC early and repeatedly, signaling skepticism about whether the supermarket chain had actually done anything wrong.
The case centers on Woolworths' Prices Dropped promotions, a scheme the ACCC claims deceived shoppers on more than 260 items. The watchdog's argument is straightforward: customers believed they were getting a genuine discount when they saw the Prices Dropped ticket, but in reality, the "was" price shown on those tickets was often higher than what the product had previously cost. The ACCC says this is misleading because it tricks people into thinking they're saving money when they're not.
But Justice O'Bryan wasn't convinced the scheme itself was deceptive. "Within that whole scheme, if I can call it that, promotional strategy, whatever you'd like to call it, none of it strikes me as nefarious or inherently misleading," he told Hodge. The judge then pivoted to what he saw as the real question: whether the higher "was" price was legitimately established in the market. He suggested the case should turn on factors like how genuine the price was, how it was chosen, and how long it was offered—not simply on what the discount representation said to consumers.
Hodge pushed back, insisting that Woolworths' representation itself—that customers would pay less than the previous regular price—was the defining feature that made it misleading. But he also conceded a crucial point: if Woolworths had kept the higher prices in place for six months before discounting them, the ACCC would never have sued. That admission seemed to crystallize the judge's concern. The case, in his view, might hinge less on deception and more on timing and legitimacy.
Woolworths has argued throughout that the higher prices were genuine. The company says it sold these products in substantial volumes at those higher prices, and in most cases, suppliers had requested price increases, making the earlier price irrelevant. Justice O'Bryan appeared sympathetic to this argument. He noted that the price increases weren't arbitrary—they came from legitimate supplier negotiations and cost pressures. "This wasn't just an arbitrary spiking of a price, there was a legitimate negotiation going on," he said.
Hodge countered that supplier cost increases were irrelevant to whether consumers were misled. The case, he argued, was purely about what people paid compared to what they'd paid before. But the judge pushed back again, suggesting the higher price hadn't been "plucked out of the air" but rather selected based on supplier recommendations. Hodge disputed this, saying the evidence showed Woolworths chose those prices specifically to create a higher "was" price for the discount, not because they represented an ongoing market price.
The hearing has also touched on a parallel case against Coles over similar allegations. Justice O'Bryan has reserved judgment on that case, which concluded in February. In a lighter moment, the judge repeatedly mixed up the two supermarket chains while speaking, catching himself and apologizing with a laugh—a brief respite in what has been a tense two weeks of testimony.
As the hearing continues, the judge's skepticism suggests the ACCC faces an uphill battle. The core question now appears to be whether a discount is misleading based on how the higher price was chosen and how long it was offered, rather than simply because it's presented as a saving. That distinction could reshape how Australian courts assess promotional pricing and what counts as consumer deception.
Notable Quotes
The ACCC's counsel acknowledged that if Woolworths had maintained the higher prices for a longer period before discounting, the case would never have been brought— Michael Hodge KC, ACCC legal counsel
The judge suggested the case should turn on whether a price was genuinely established in the market, how it was chosen, and how long it was offered— Justice Michael O'Bryan
The Hearth Conversation Another angle on the story
So the judge basically told the ACCC their case isn't as strong as they thought?
Not in those words, but yes. He kept interrupting to say the promotional scheme itself didn't look deliberately misleading to him. That's a big problem for the ACCC's argument.
What does the ACCC actually need to prove, then?
They're saying Woolworths lied to customers—that the "was" price on the discount ticket was fake, that people thought they were saving money when they weren't. But the judge kept asking whether the real question is whether that higher price was legitimate in the first place.
And was it?
That's what the judge seems to think matters. Woolworths says suppliers asked for price increases, they sold products at those higher prices in real volume. The judge seemed to accept that. The ACCC says none of that matters—if you're showing a discount, the comparison has to be fair.
So what happens if the judge sides with Woolworths?
It could mean Australian courts will focus less on how a discount is presented and more on whether the higher price was genuinely established. That's a much harder case for regulators to win.
And the ACCC's own lawyer basically handed the judge a roadmap?
He did. He said if Woolworths had kept those higher prices for six months, they wouldn't be in court. That told the judge the real issue is timing and legitimacy, not deception.