ACCC v Heinz - penalty case survives...just!

I was having a quick look at the ACCC's case against Heinz in relation to the Little Kids Shredz products.  I must admit, I was left scratching my head...again! The ACCC sues Heinz for contraventions of sections 18, 29 and 33 of the ACL. However, the ACCC then fails to make any evidentiary submissions to the Court in relation to either sections 29 and 33 - see para 271.

Rather the ACCC focuses entirely on section 18 which is a non-penalty provision. 

Did the ACCC forget that in order to get a penalty out of Heinz it needed to establish a contravention of either sections 29 or 33?   Strangely the ACCC then goes to great lengths to try to prove that Heinz had either actual or constructive knowledge of the misrepresentations, even though knowledge is not an element of any of the contraventions.   The only explanation I can see for spending so much time trying to prove knowledge is to get a bigger penalty. 

However, why bother making submissions on knowledge unless you have first established a contravention of a penalty provision? Luckily for the ACCC the Judge was able to find an evidentiary basis for a contravention of section 29(1)(g) (see para 278), so the ACCC should end up getting a penalty out of Heinz!

271    Although both the ACCC’s opening and closing submissions indicated that it pursued its allegations of contraventions of ss 29(1)(a), 29(1)(g) and 33 and its closing submissions identified in an distinct way the elements of contraventions of those provisions, it did not address any submissions relating the evidence in this case to those elements or seek to show how those contraventions were established. Its position seemed to be that the contraventions would be established by the same matters indicating that Heinz’s conduct was misleading or deceptive.

278    In summary, in the absence of submissions from the ACCC, I find that it has established only contraventions of s 29(1)(g) of the ACL. I do not think that conclusion involves unfairness to Heinz as the elements of the contraventions are the same as those it knew it had to confront in relation to s 18.

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca0360