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.