Optus Mobile Pty Limited v Hutchison 3G Australia Pty Limited

[2003] FCA 680

FEDERAL COURT OF AUSTRALIA

Optus Mobile Pty Limited v Hutchison 3G Australia Pty Limited [2003] FCA 680

OPTUS MOBILE PTY LIMITED v HUTCHISON 3G AUSTRALIA PTY LIMITED
N 724 of 2003

ALLSOP J
4 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 724 of 2003

BETWEEN:	OPTUS MOBILE PTY LIMITED APPLICANT
AND:	HUTCHISON 3G AUSTRALIA PTY LIMITED RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	4 JULY 2003
WHERE MADE:	SYDNEY

THE COURT:

1.Orders pursuant to O 29 r 2 of the Federal Court Rules that the question of the damages, if any (including causation of any damage) said to have been suffered by the applicant by the respondent’s conduct, be heard after the trial of the balance of the issues in the proceedings.

2.Declares that the respondent has contravened s 52 and par 53(c) of the Trade Practices Act 1974 (Cth) (TP Act) by causing to be published the following advertisements:

(a)the advertisement appearing at tab 7 of exhibit SDT1 to the affidavit of Stuart Donald Tucker affirmed 16 June 2003 (the first Tucker affidavit) and being also found as exhibit SDT2 to the affidavit of Stuart Donald Tucker of 19 June 2003 (the second Tucker affidavit);

(b)the advertisement appearing at tab 8 of the said exhibit SDT1 and being also found in substantially the same form as exhibit SDT3 to the second Tucker affidavit and at tab 2 of exhibit AH1 to the affidavit of Amanda Lynne Hutton of 19 June 2003;

(c)the advertisement appearing at tabs 9 and 10 of the said exhibit SDT1;

(d)the advertisements appearing at tabs 4, 5, 6, 8, 10, 11, 13, 14, 15 and 17 of the said exhibit AH1;

(e)the advertisement being exhibit SDT4 to the affidavit of Stuart Donald Tucker of 24 June 2003 and exhibit SK1 to the affidavit of Silloo Kabraji of 23 June 2003; and

(f)the advertisements in exhibits R1 and R2 and appearing at tab 3 of exhibit TC1 to the affidavit of Trent Ashley Clinton Czinner of 19 June 2003.

3.Declares that the respondent has contravened s 52 and par 53(c) of the TP Act by representing in various terms, contrary to the fact, that:

(a)consumers can access all the respondent’s services, including live video calls and other video services in 92 per cent of Australia’s populated areas;

(b)consumers connected to the respondent’s network can make live video calls to anywhere in London, the United Kingdom or Italy;

(c)consumers connected to the respondent’s network can make live video calls to anywhere in the UK or Italy;

(d)consumers who purchase an NEC e606 handset or an NEC handset can make $32 worth of live video calls free nationally each month on the respondent’s network;

(e)consumers who purchase an NEC e808N handset can make $38 worth of live video calls free nationally each month on the respondent’s network; 

(f)consumers can, within Australia, make and receive live video calls and access all the respondent’s services:

(i)in the same or substantially the same geographical areas as they are able to use all other services on the respondent’s network, including mobile telephone services;

(ii)in a substantial part of the populated areas of Australia;

(iii)nationally over Australia;

(g)consumers can make and receive voice calls and send and receive SMS messages on the respondent’s network in certain geographical areas of New South Wales, Victoria, Queensland, South Australia and Western Australia including the areas shaded in white on the maps contained in exhibits R1 and R2 in these proceedings;

(h)consumers can access email, voicemail, text messages, multimedia messaging and faxmail on the respondent’s network, in certain geographical areas of New South Wales, Victoria, Queensland, South Australia and Western Australia including the areas shaded in grey on the maps contained in exhibits R1 and R2 in these proceedings; and

(i)consumers can make live video calls to all other customers of the respondent in Australia or other customers of the respondent in Australia who have an appropriate handset.

4.Orders that the respondent be restrained by itself, its directors, its employees, its agents or otherwise from publishing or causing to be published:

(a)any advertisement in the form of those advertisements referred to at 2(a) to (f) above;

(b)any representation as set out at 3(a) to (i) above, or any representation substantially similar thereto, unless it be accurate at the time of making the representation; and

(c)the advertisement referred to at tab 7 of the said exhibit AH1.

5.Orders that the respondent forthwith take all necessary steps, as far as those steps are possible, to ensure that no further publication of any advertisement referred to in orders 4(a) and (c) above takes place.

6.Notes the undertakings of the respondent to the Court as set out in the document attached and marked A, noting that the fact that an act or conduct in the future may fall outside the undertaking and that the fact that the undertaking is complied with does not or may not conclude the question as to whether the act or conduct falls outside orders 4 and 5 above, or either of them, or as to whether orders 4 and 5 have, or either has, been complied with.  The noting of the proffered undertaking is not intended, in any way, to limit the reach of orders 4 and 5, or either of them.

7.Orders that the respondent cause to be published and mailed corrective advertisements in the form of the documents annexed and marked B and C, respectively, as follows:

(a)by causing the advertisement annexed and marked B to be published on two occasions, the first occasion to be within 10 days of the date of these orders and the second occasion to be within 7 days of the first, within the first 10 pages in each of the Sydney Morning Herald and the Sun-Herald in Sydney, and within the first 13 pages of the Daily Telegraph in Sydney, and within the first 10 pages of the Sunday Herald Sun in Melbourne, the Herald Sun in Melbourne, and the Melbourne Age, the size of such advertisement being no less than 16 cm x 22 cm in size in each such newspaper printed in tabloid form and 22 cm x 30 cm in each such newspaper printed in broadsheet form; and;

(b)by causing the advertisement annexed and marked C to be mailed as one A4 page containing the advertisement being no less than 16 cm x 22 cm in size, within 7 days of the date of these orders, to each individual who became a customer of the respondent between 8 June 2003 and the date of these orders.

8.Stands the proceedings over to a date to be fixed for the making of any further necessary orders, including costs, and the delivery of reasons.

9.Grants liberty to apply on 2 days’ notice.

10.Extends time for the purposes of and pursuant to Order 52 rule 10(2)(b) of the Federal Court Rules for the filing of any application for leave to appeal from the above orders to a day fourteen days from the pronouncement of reasons for judgment for these orders.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The following attachments have not been scanned and are therefore not attached .

Attachment 1 Pages 1, 2, 3(a), 3(b), 4(a), and 4(b)  

Attachment 2  Pages 1, 2 and 3

Attachment 3   Pages 1, 2, 3 and 4

“A”

Undertakings by Hutchison

1.Hutchison undertakes to the Court that:

(a)Hutchison, by itself, its directors, employees and agents will not use the advertisements in the form of exhibits SDT-2, SDT-3, SDT-4 and AH-1, tabs 1, 2, 4, 5, 6, 8, 10, 11, 13, 14, 15 and 17.

(b)Subject to sub-paragraph (d) below, until factually correct or in accordance with normal usage in mobile telephone or messaging advertising, Hutchison, by itself, its directors, employees and agents, will not, either expressly or impliedly, by electronic or print media, from 25 June 2003 in advertisements or promotional material:

(i)use the phrase “92% of Australia’s populated areas” or any substantially similar phrase, in relation to coverage on the 3 Network (as defined in the Statement of Claim) without an appropriate qualification to make it clear to consumers that the 92% level of coverage is limited to mobile voice calls on the 3 Network;

(ii)use the words “national” or “nationally” in relation to live video calls and other video services on the 3 Network without an appropriate qualification;

(iii)refer to a specific geographic location in Australia or overseas in relation to live video calls and other video services on the 3 Network in Australia without appropriate qualification concerning the availability of coverage in that location; or

(c)Hutchison, by itself, its directors, employees and agents will not, from 25 June 2003 and until 31 July 2003, either expressly or impliedly, in any press or television advertisements, make any reference to video calls within Australia without including an appropriate qualification concerning the limitation of video calling from video zones.

(d)Hutchison, by itself, its directors, employees and agents, does not undertake to comply with the terms of the Undertaking in paragraph (b) in respect of the following:

(i)any printed advertisement appearing in a publication that has at 23 June 2003 been printed or published;

(ii)vouchers and printed collateral for the Family & Friends offers and vouchers for other promotional activities (including employee, 3 store and shareholder promotional activities) in a substantially similar form to the vouchers in Attachment 1;

(iii)until 31 July 2003 the “What You Pay on 3” printed pricing brochures for consumers as contained in Exhibit AB-2 to the affidavit of Alexis John Charles Bergomi sworn 23 June 2003 and Exhibit VJA-1 to the affidavit of Vanessa Jean Armstrong sworn 23 June 2003;

(iv)until 31 July 2003 the handset pricing displays in 3 Shops in substantially similar form to those in Attachment 2; and

(v)until 31 July 2003 the “What You Pay on 3” printed pricing brochures for businesses which is Attachment 3.

(e)Hutchison will instruct the 3 sales representatives and agents that, until 31 July 2003, when any consumer subscribes to 3 Network Services the representatives or agents are expressly to outline to the consumer the limitations of coverage for live video calls and other video services.

“B”

CORRECTION BY 3 [ie stylised 3 logo in colour or black and white to be used as part of the heading as in Exhibit R1 tendered on 26 June 2003]

3 has been ordered by the Federal Court of Australia to publish this notice.

In various advertisements published prior to 30 June 2003, 3 represented that the video services available on the 3 Network, including the ability to make and receive live video calls, are available throughout Australia, and also that live video calls can be made from Australia to anywhere in the United Kingdom and Italy.  The Federal Court has found such advertisements to be misleading or deceptive or likely to mislead or deceive.

Live video calls on the 3 Network can, at present, only be made to and from Video Zones in Sydney, Melbourne, Perth, Adelaide and Brisbane, which Video Zones cover substantial parts of those cities, and between areas in those Video Zones and parts of the United Kingdom, Italy, Austria and Sweden.  Other video services on the 3 Network are also only available in parts of Sydney, Melbourne, Perth, Adelaide and Brisbane.

Further, in other newspaper advertisements published on 26 and 29 June 2003, 3 published incorrect coverage maps.  The areas in these maps shown as Talk and SMS Zones are areas where 3 has no coverage.  In some of the areas shown as Messaging Zones it is only possible to make and receive voice calls and text messages.  You should disregard these maps and we apologise for this error.  Accurate coverage maps including the Video Zones can be found at 3’s website:   align="center">“C”

CORRECTION BY 3 [ie stylised 3 logo in colour or black and white to be used as part of the heading as in Exhibit R1 tendered on 26 June 2003]

3 has been ordered by the Federal Court of Australia to send this notice.

In various advertisements published prior to 30 June 2003, 3 represented that the video services available on the 3 Network, including the ability to make and receive live video calls, are available throughout Australia, and also that live video calls can be made from Australia to anywhere in the United Kingdom and Italy.  The Federal Court has found such advertisements to be misleading or deceptive or likely to mislead or deceive.

Live video calls on the 3 Network can, at present, only be made to and from Video Zones in Sydney, Melbourne, Perth, Adelaide and Brisbane, which Video Zones cover substantial parts of those cities, and between areas in those Video Zones and parts of the United Kingdom, Italy, Austria and Sweden.  Other video services on the 3 Network are also only available in parts of Sydney, Melbourne, Perth, Adelaide and Brisbane.

Further, in other newspaper advertisements published on 26 and 29 June 2003, 3 published incorrect coverage maps.  The areas in these maps shown as Talk and SMS Zones are areas where 3 has no coverage.  In some of the areas shown as Messaging Zones it is only possible to make and receive voice calls and text messages.  You should disregard these maps and we apologise for this error.  Accurate coverage maps including the Video Zones can be found at 3’s website:   align="left">3 has also been ordered to inform you that any customer who has contracted with 3 on a mistaken understanding of the coverage of live video calls or other video services on the 3 Network brought about by any of the incorrect advertising may have a claim against 3 for misleading or deceptive advertising.