NARELLAN POOLS PTY LIMITED & ORS. v COMPASS CERAMIC COMPOSITE PTY LIMITED

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. NG 943 of 1995 BETWEEN: NARELLAN POOLS PTY LIMITED (A.C.N. 003 607 681) First Applicant INTERNATIONAL POOLS (AUST) PTY LTD (A.C.N. 003 119 444) AND GABBRON PTY LTD (A.C.N. 003 938 770) Second Applicants FIBRE-TEK (GOLD COAST) PTY LIMITED (A.C.N. 010 811 980) Third Applicant AND: COMPASS CERAMIC COMPOSITE PTY LIMITED (A.C.N. 001 921 384) Respondent CORAM: Lehane J PLACE: Sydney DATE: 20 December 1995 EXTEMPORE REASONS FOR JUDGMENT LEHANE J: The applicants, who are manufacturers and sellers of fibreglass swimming pools, claim that the respondent, which has also been a manufacturer and seller of fibreglass swimming pools, has made a number of representations both in certain advertising material and orally concerning a new design of swimming pool manufactured by the respondent which the applicants claim to be false, misleading or deceptive. By a notice of motion filed on 14 December 1995 the applicants have sought, first, orders requiring the amendment by way of over-stickering of a particular advertisement and certain consequential orders; secondly, an order the effect of which would be to prevent further publication of the unamended advertisement; thirdly, orders which would require the respondent to issue at least a provisional retraction to persons to whom that advertisement had been distributed; fourthly, similar orders as to a provisional retraction in relation to a somewhat wider category of advertising material; and, finally, orders by way of injunctions restraining the publication or distribution of any of that wider category of advertising material or advertising material in terms substantially the same as any of the material falling within that wider category. Additionally, there is evidence, read on behalf of the applicants, as to the making, by persons representing the respondent, of oral representations of the kind appearing in the advertising material of which complaint is made. There is also evidence, read on behalf of the applicants, of an expert in the chemistry of the materials used in the manufacture of the swimming pools with which we are concerned, to the effect that the differences claimed to exist between the so-called traditional fibreglass pools manufactured by the applicants and the new form of pool now manufactured by the respondent are of little practical significance, at least so far as the strength and durability of the pools are concerned and the likelihood that they will in the future develop particular problems. I do not think I need at present to go into those matters in any great detail for the reason that in the course of argument this afternoon the extent of the differences between the parties at this interlocutory stage has been significantly narrowed and the relief now sought is considerably less extensive than was claimed in the notice of motion. I believe it is now accepted by the applicants that it is not appropriate for them to seek or for me to grant interlocutory relief concerning the future publication or distribution of written advertising material of the kind with which paragraphs 1(a) and (b) and paragraphs 3 and 4 of the notice of motion dealt. As a result, all that I am now required to consider is whether I should make orders requiring the respondent to write, to persons to whom certain categories of material have been distributed, letters to the effect that certain assertions made in that material are no longer made by the respondent while these proceedings are being determined. For present purposes I think I can express my conclusions in summary form. First, I think the applicant has established sufficiently for the purposes of interlocutory relief that there is a serious question to be tried in relation to the claim that representations have been made in writing and orally which are false, misleading or deceptive. If it matters, I would be inclined to hold, secondly, that a prima facie case that that is so has been made out - at least I shall proceed on the assumption that that is so. Thirdly, however, for a number of reasons I am not persuaded that, on the balance of convenience, I ought to grant any interlocutory relief at this stage, particularly as the interlocutory relief which is now sought has become very much narrower in scope than was sought originally. The particular matters which lead me to that conclusion are as follows. In the first place, it is not by any means clear, I think, that damages would not be an adequate remedy in relation to the particular matters with which paragraphs 1C and 2 of the notice of motion would deal. Secondly, although Mr Gleeson disclaimed any wish to seek, by way of a collateral effect of any interlocutory relief, confidential information relating to the customers of the respondent, certain of the relief still sought in the notice of motion would in fact make available to the applicants information of that kind. In all the circumstances I would not be inclined at this stage to undertake an exercise of redrafting, by way of what might be called tightening or clarification, the somewhat wide paragraphs in the notice of motion in which the interlocutory relief which the applicants now seek is claimed. Thirdly, I think that at least in relation to the rather narrow relief now sought, and bearing in mind that that is the only relief of an interlocutory kind now in issue, I should take into account the long period which has elapsed between the commencement and at least temporary termination of correspondence between the parties and the institution (urgently, and at the last minute) of these proceedings and the time and date at and on which I am now dealing with the limited category of relief which is still sought. In short, I am not persuaded that this is an appropriate case for interlocutory relief and I decline to grant any of the relief by way of interlocutory orders sought by the applicants. The applicants seek liberty to apply. In the circumstances, particularly given my conclusion that there is in relation to at least certain of the final relief sought a serious question to be tried and, if it were relevant, a prima facie case, it seems to me appropriate to grant liberty to apply. Probably, given the time of year, five working days notice might be an appropriate period. I am persuaded that the applicants should meet the respondent's costs of today's proceedings. I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane. Associate: Dated: 8 February 1996 Heard: 20 December 1995 Place: Sydney Decision: 20 December 1995 Appearances: Mr J T Gleeson of counsel instructed by Kalyk Nash Lawyers appeared for the applicants. Mr D A Cowdroy QC and Mr M Walton of counsel instructed by Levingstons Solicitors appeared for the respondent.