00:02So, the ACCC is suing Coles, alleging that they jacked up the price for a very short
00:08period of time before then putting it on a down-down discount, and that that was actually
00:14a higher price than the first price that was offered.
00:17So even though it said on the ticket, you're making a saving, that wasn't really the case
00:22because some of these products, a dog food tin was sold at this price for just seven
00:28days the higher price before it was discounted.
00:31And the ACCC says that's unfair and that's misleading.
00:35While Coles has been taking us through its closing arguments already yesterday afternoon,
00:41it's continuing this theme that the ACCC hasn't made its case properly, that these were genuine
00:47discounts, that they were selling the product for a reasonable period of time, they claimed
00:53before the discount was offered, and so the discounts were real.
00:57And also, they were being pressured by suppliers to increase the cost of their products on
01:03the supermarket shelf.
01:05And so, circumstances had changed, and Coles has been trying to poke their way through the
01:11ACCC's legal arguments, and they say that the case should simply fail.
01:18And yesterday, Michael, there was a fairly stunning intervention from the judge.
01:23Tell us a bit more about that.
01:25This was one of those moments where the court really paid attention to what was happening.
01:32The ACCC's legal counsel, Gary Rich, was in the middle of his closing argument in the
01:37very early stages. He was describing how most supermarket shoppers find it a chore, they're in
01:44a rush. He painted a picture of parents with children hanging off the supermarket trolley begging for
01:51ice cream while they just wanted to get it done as quickly as possible. But he also made it clear
01:56that
01:57shoppers are from all walks of life, they could be well-paid professionals or they could be the unemployed,
02:03they could be elderly pensioners. And he said when they were going down the supermarket aisle and they saw these
02:09down-down pricing tickets offering a saving, they thought it was a good deal and that it was a genuine
02:16discount.
02:16They weren't thinking about things like the history of the pricing, where the prices were going up
02:23generally. They saw the ticket and they believed what Coles was telling them. And Justice O'Brien,
02:29the judge overseeing the case, he had this moment where he just interrupted and said,
02:35hang on, can I pull you up here? What you're talking about with these two points of a shopper going
02:42down
02:42the aisle and looking at the tickets. Well, you're talking about them thinking they're getting a good
02:47deal and that they believe it's a genuine discount. Well, that's not been a central feature of your case
02:53until now. And because of that doesn't mean your entire case has to fail. And Gary Rich, the ACCC's
03:01counsel, you won't be surprised to hear, said, no, Your Honour, and I'm just getting warmed up. I've got
03:08plenty more arguments to come your way. But it was one of those moments that really stopped the court
03:13and, you know, looks like a really bombshell moment in the court. And we'll see if that ends up being
03:19true when Your Honour finally gets back to us with his judgment. Yes, no doubt. Now, Michael,
03:26the stakes are pretty enormous for both sides of this case. So what potentially could happen here?
03:33Look, the stakes are enormous for both sides. I think for Coles, it's facing the potential
03:38of an enormous fine. So, you know, it could be north of $50 million. Some experts I've spoken to
03:46think it might be higher than $100 million if it's found guilty of the conduct. But I think,
03:51most importantly, there would be a reputational damage that would continue to linger against Coles
03:57for some time. I think many shoppers would remember this for a significant period after
04:04the court case if they do in fact lose. And on the other side of the coin, if the ACCC
04:09loses here,
04:10there will be significant reputational damage for the consumer watchdog because it's gone out on a limb
04:16here. And it's said that this type of discount pricing is illegal, that it's misled consumers. And
04:23there's another almost identical case against Woolworths waiting in the wings. And so if this fails,
04:30there will be questions about the ACCC's judgment here. And more broadly, I think the business
04:36community will be watching this case closely, because if this type of discounting is ruled
04:42illegal, well, it's widespread across all kinds of retailers, and they might have to change their practices.
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