Polaris Communications Pty Ltd (ACN 006 102 601) v Dynamic Hearing Pty Ltd (ACN 098 876 212) [2009] FCA 890

FEDERAL COURT OF AUSTRALIA

Polaris Communications Pty Ltd (ACN 006 102 601) v Dynamic Hearing Pty Ltd (ACN 098 876 212) [2009] FCA 890

TRADE PRACTICES – misleading or deceptive conduct – comparative advertising – acoustic protection devices – whether report on comparative merits of devices contained misleading representations

Trade Practices Act 1974 (Cth) ss 52, 53(a) Fair Trading Act 1999 (Vic) ss 9, 12

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 applied Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 applied Gardam v George Wills & Co Ltd (1998) 82 ALR 415 followed Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 considered Hoover (Australia) Pty Ltd v Email Ltd (1992) 104 ALR 369 cited

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

18 AUGUST 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: 18 AUGUST 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION 1 This case is about a comparison report concerning acoustic shock protection devices. These devices are amplifiers that are commonly used to limit the levels of sounds heard by call centre workers and to reduce the risk of acoustic shock which the workers sometimes experience. The devices that were compared used digital sign processing. Earlier versions were analogue devices. 2 Since 2001 the applicant (Polaris) has sold a limiting amplifier called SoundShield, which is designed, through the use of internal settable controls, to be inter‑operable with a wide range of host telephones and any headset type. Since about September 2006 the second respondent (Plantronics) has sold a competing limiting amplifier called M15D, which is designed solely for use with Plantronics equipment. 3 M15D was developed as the result of collaboration between Plantronics and the first respondent (Dynamic) which commenced in early 2005. The aim of the collaboration, called the Tecate project, was to produce a limiting amplifier to compete with SoundShield, in particular in relation to Telstra, a major customer for such devices, which had its own particular requirements with respect to limiting amplifiers. These requirements were contained in Telstra's specification TP TT404B51 called "Specification – Headset & Limiting Amplifier, Acoustic Protection" (TT4). Polaris was at the time a supplier of devices to Telstra. 4 In mid‑2005 Dynamic distributed a report entitled "Comparisons of Acoustic Protection Devices – Plantronics ADRO® M15D versus the Polaris SoundShield®". The report was provided to Telstra, which gave a copy to Polaris on a confidential basis. Plantronics provided a copy to Siemens, which was then its exclusive distributor in Australia of acoustic shock protection devices and telephone headsets, for the purpose of distribution. Plantronics also gave a copy to Westpac. The report was distributed in long and short form, though only the short form is at issue in the proceeding. 5 The report was produced at a time when Telstra was in the process of preparing a request for tender for the ongoing supply to it of acoustic shock protection devices. Plantronics and Polaris proposed to put in tenders. The Telstra tender was worth a considerable amount to the successful tenderer. The quantum is confidential. 6 At the time of the report SoundShield was the dominant product in the market, having achieved a very large number of sales, a substantial proportion having been made to Telstra. The number and proportion are confidential.