Polaris Communications Pty Ltd (ACN 006 102 601) v Dynamic Hearing Pty Ltd (ACN 098 876 212) (No 2)

[2009] FCA 1111

FEDERAL COURT OF AUSTRALIA

Polaris Communications Pty Ltd (ACN 006 102 601) v Dynamic Hearing Pty Ltd (ACN 098 876 212) (No 2) [2009] FCA 1111

POLARIS COMMUNICATIONS PTY LTD (ACN 006 102 601) v DYNAMIC HEARING PTY LTD (ACN 098 876 212) and PLANTRONICS PTY LTD (ACN 080 486 193)

VID 676 of 2006

SUNDBERG J
30 SEPTEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 676 of 2006
GENERAL DIVISION

BETWEEN:

POLARIS COMMUNICATIONS PTY LTD (ACN 006 102 601)
Applicant

AND:

DYNAMIC HEARING PTY LTD (ACN 098 876 212)
First Respondent

PLANTRONICS PTY LTD (ACN 080 486 193)
Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	30 SEPTEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT:

1.The respondents have:

(a)engaged in conduct that is misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 9 of the Fair Trading Act 1999 (Vic); and

(b)in connection with the supply or possible supply of goods or in connection with the promotion of the supply of such goods, made false or misleading representations with respect to the standard, quality or grade of such goods, in contravention of s 53(a) of the Trade Practices Act 1974 (Cth) and s 11 of the Fair Trading Act 1999 (Vic),

by publishing and distributing a report entitled “Comparisons of Acoustic Shock Protection Devices – Plantronics ADRO M15D versus the Polaris SoundShield” (“the comparison report”) which contains the following misrepresentations:

(i)that the applicant’s SoundShield device is unsuitable for use in call centres because of its poor intelligibility when background noise is present;

(ii)that the applicant’s SoundShield device fails to comply with the Telstra intelligibility requirement of 90% intelligibility in call centre environments with conversational chatter to 55dBA;

(iii)that the applicant’s SoundShield device is unsuitable for TT4 compliant operation so far as speech intelligibility is concerned; and

(iv)that the testing reported in the comparison report was a properly conducted scientific test.

THE COURT ORDERS THAT:

2.The respondents, and each of them, whether by themselves, their servants or agents or howsoever otherwise, be forthwith permanently restrained from:

(a)further publishing, distributing, circulating or communicating the comparison report or the results of the testing reported therein;

(b)causing the comparison report or the results of the testing reported therein to be further published, distributed, circulated or communicated; or

(c)otherwise representing by reason of or by reference to the comparison report or the results of the testing reported therein that the applicant’s SoundShield device:

(i)is unsuitable for use in call centres because of its poor intelligibility when background noise is present;

(ii)does not comply with the Telstra intelligibility requirement of 90% intelligibility in call centre environments with conversational chatter to 55dBA; or

(iii)is not suitable for TT4 compliant operation so far as speech intelligibility is concerned.

3.Unless within 21 days of the date of this Order, the respondents, or either of them, file and serve an application for leave to appeal or file and serve a notice of appeal, each respondent shall thereafter provide a copy of the Court’s declarations and orders made this day to all persons to whom the comparison report or the results of the testing reported therein have been distributed, circulated, communicated or published by or on behalf of that respondent, being each individual to whom that respondent provided the report or the results of the testing reported therein, or, if that individual is no longer employed by the company or business entity which employed him or her at the time the report or results were provided, the individual now occupying an equivalent position in the company or business entity.

4.Within 14 days each respondent, by its proper officer and after making all due and proper enquiries of their servants and agents, make file and serve an affidavit identifying each person or persons (including each individual and each company and business entity) to whom the comparison report or the results of the testing reported therein has been distributed, circulated, communicated or published by or on behalf of that respondent, including without limitation in the case of the second respondent enquiries of Siemens Limited, Mr Mal Doig and Mr Barrett Styles so as to ascertain and disclose to the fullest extent possible any distribution, circulation, communication or publication by Siemens Limited.

5.The costs of the proceeding to date be reserved.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 676 of 2006
GENERAL DIVISION

BETWEEN:

POLARIS COMMUNICATIONS PTY LTD (ACN 006 102 601)
Applicant

AND:

DYNAMIC HEARING PTY LTD (ACN 098 876 212)
First Respondent

PLANTRONICS PTY LTD (ACN 080 486 193)
Second Respondent

JUDGE:	SUNDBERG J
DATE:	30 SEPTEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 18 August 2009 I made available to the parties my reasons for concluding that Polaris had been partially successful in its claims against both respondents. I did not then make final orders. Rather, I stood the matter over in order that the parties have an opportunity to consider the orders that should be made to give effect to those reasons. I directed that if they were unable to agree, they should make submissions in writing as to the orders to be made. The parties were unable to agree, and made submissions.

2. The parties are now agreed as to three of the orders. These are orders 1, 2 and 5 dealing respectively with declarations of contravention, injunctions and costs.

3. Polaris and Plantronics are agreed as to order 4, which requires Dynamic and Plantronics to prepare an affidavit identifying the persons to whom the comparison report or the results of the testing reported therein have been published. Dynamic’s form of order 4 differs from that agreed by Polaris and Plantronics insofar as it deals with the additional obligations of Plantronics in relation to Siemens Limited. I have adopted the form of order agreed by Polaris and Plantronics for two reasons. The first is that Dynamic’s version differs in relation to a matter (Siemens) which is relevant only to Polaris and Plantronics. The second is that in its written submissions Dynamic says it makes no submissions in relation to order 4.

4. The parties are not agreed as to order 3. As propounded by Polaris (with an addition in bold type) it reads:

   … each Respondent forthwith provide a copy of the Court’s declarations and orders made this day to all persons to whom the comparison report or the results of the testing reported therein have been distributed, circulated, communicated or published by that Respondent (being each of the individuals to whom the report or the results of the testing reported therein or, if that individual is no longer employed by the company or business entity which employed him or her at the time the report and/or results were provided, the individual now occupying an equivalent position in the company or business entity).

   I have inserted the words in bold type because a comparison with order 4, in which the words appear, suggests that they have been omitted from order 3 by oversight.

5. The bulk of the verbiage is agreed: the words from “provide” in the first line to the end of the order. However Dynamic would replace the opening words – “each Respondent forthwith” provide a copy of the declarations and orders – with the words “Unless within 21 days of the date this order, the Respondents, or either of them, file and serve an application for leave to appeal or file and serve a notice of appeal, each Respondent shall thereafter” provide a copy of the declarations and orders.

6. Dynamic submits that the order should be made in the form it proposes for three reasons. First, it has instructed its solicitors to appeal, and if it succeeds and the order sought by Polaris has been complied with, “the substratum of the appeal, in respect of those matters, would have been destroyed”. Second, if the appeal succeeds, the persons to whom the distribution or publication has been made would have been misled by the distribution or publication by Dynamic of matters which would in that event be found to be incorrect. Third, the comparison report has not been circulated since 2005 and Polaris no longer manufactures the device the subject of the comparison. In those circumstances a three week delay does not deny Polaris a benefit of any real value to it.

7. Plantronics would replace the opening words of order 3 with:

   Orders that within the later of:

   (a)28 days; or

   (b)if the Respondents or either of them file an application for leave to appeal or a Notice of Appeal, and a Notice of Motion seeking a stay of order 3 of these orders, 7 days from the final determination of the Notice of Motion seeking a stay ….

8. I propose to make an order in the form proposed by Dynamic. I do so for the reasons recorded at [6]. I add that there is nothing to stop Polaris from providing the Court’s reasons and orders to the persons it has nominated, though it would doubtless think it proper to inform them that Dynamic had instructed its solicitors to appeal from those orders.

9. In view of Dynamic’s intention to appeal, I have not made order 6 proposed by Polaris.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:        30 September 2009

Counsel for the Applicant:	C Golvan SC and S Gatford
Solicitor for the Applicant:	GSM Lawyers
Counsel for the First Respondent:	AG Uren QC and MT Lapirow
Solicitor for the First Respondent:	HWL Ebsworth & Ebsworth
Counsel for the Second Respondent:	P Crennan
Solicitor for the Second Respondent:	Allens Arthur Robinson

Date of Last Submission:	8 September 2009
Date of Judgment:	30 September 2009