FEDERAL COURT OF AUSTRALIA

Xiamen Huadian Switchgear Co Ltd v Powins Pty Ltd [2022] FCA 1159

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide agreed draft declarations and orders, including as to costs and prohibitory injunctions, to give effect to the reasons for judgment delivered today and, in default of agreement, each party file and serve written submissions (limited to 10 pages), draft declarations and orders, including as to costs and prohibitory injunctions, it proposes should be made, including as to costs, and any affidavit evidence in support of those draft declarations and orders on or before 27 October 2022.

2.    The applicant file and serve written submissions on damages, including exemplary damages and any account of profits (limited to 10 pages), and any affidavit evidence in support of those submissions on or before 10 November 2022.

3.    The respondents file and serve written submissions on damages, including exemplary damages (limited to 10 pages), and any affidavit evidence in support of those submissions on or before 8 December 2022.

4.    The proceeding be listed for a hearing on damages, including exemplary damages, and any account of profits and to the extent that it is not the subject of consent orders, declarations and all other orders, including as to costs and prohibitory injunctions, to give effect to the reasons for judgment delivered today at 10.15 am on a date in February 2023 that is convenient to the Court and the parties (February 2023 Hearing).

5.    The amended cross-claim be dismissed.

6.    The respondents/cross-claimants are to pay the costs of the applicant/cross respondent.

7.    The matter is to be listed for a case management conference at 9.30 am on Thursday 6 October 2022 to consider what if, any, further orders and directions may be required to facilitate the efficient conduct of the February 2023 Hearing.

8.    The parties are granted liberty to apply on three days’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS

REASONS FOR JUDGMENT

HALLEY J:

INTRODUCTION

1    The applicant and cross respondent, Xiamen Huadian Switchgear Co., Ltd, or “Huatech” (Huatech), is a manufacturer of medium-voltage electrical switchgear panels (Huatech Switchgear Panels) and vacuum circuit breakers (Huatech Circuit Breakers) (together, Huatech Products).

2    Huatech was registered as a company in December 2002. Huatech’s founders decided at an early stage that its General Manager, Mr Charles Sher, would establish a German company with a German name (Gelpag GmbH) and that Huatech would enter into agreements with Gelpag GmbH. Huatech considered that the two perceived benefits of this arrangement were that Gelpag GmbH would be able to arrange certain “type testing” to international standards in Germany, and that Huatech’s products might benefit from being affiliated with a German brand.

3    The Huatech Products have been sold to Australian customers since at least 2007 under the marks AMS and VEP, respectively. The Huatech Products have variously been co-branded with the mark GELPAG, a distributor’s mark (by way of example, BV2, POWINS and LEISTUNG ENERGIE), or Huatech’s own name, alongside the AMS or VEP mark.

4    Huatech is the owner of Australian trade mark registration no. 1148294 comprising the fancy mark VEP in class nine for electric switches, circuit breakers, electric relays, distribution boxes (electricity), switchboards, distribution boards (electricity), current transformers, sensors, and high and low voltage switch planks (the VEP Mark and VEP Registration).

5    By February 2019, in excess of 4,000 Huatech Switchgear Panels (together with Huatech Circuit Breakers) had been installed at sites around Australia.

6    Huatech contends that, as a result of the sale and promotion of the Huatech Products in the period up to February 2019, Huatech and its products had acquired a significant reputation in Australia as a source of manufacture, as had its AMS and VEP marks as indicia of trade origin.

7    The first respondent and first cross-claimant, Powins Pty Ltd (Powins), is an electrical turnkey solutions provider for electronic switchgear products in Australia. It was a non-exclusive distributor of the Huatech Products between February 2016 and February 2019. In the period since its distribution arrangements with Huatech ended in February 2019, Powins has promoted and sold a different range of medium voltage switchgear panels (New Powins Switchgear Panels) and circuit breakers (New Powins Circuit Breakers) (together, New Powins Products).

8    The second respondent and second cross-claimant (Gelpag AU) is a wholly owned subsidiary of Powins. Gelpag AU was incorporated in 2019.

9    Huatech alleges in the second further amended statement of claim filed on 20 December 2021 (2FASOC) that the respondents have engaged in misleading or deceptive conduct in contravention of ss 18 and 29 of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL), passing off and trade mark infringements.

10    Huatech alleges that Powins, or alternatively, both Powins and Gelpag AU, made the following representations in publications and in communications with its customers:

(a)    the New Powins Switchgear Panels originate from the same manufacturer as the Huatech Switchgear Panels sold in Australia since around 2006 by reference to the mark AMS, including in conjunction with distributor names as in the case of POWINS AMS and GELPAG AMS (Switchgear Origin Representation);

(b)    the New Powins Switchgear Panels now sold as “POWINS AMS12 and POWINS AMS24 Switchgear” are the same products as, or an updated model or version of, the corresponding Huatech Switchgear Panels (Switchgear Same Product Representation);

(c)    the New Powins Circuit Breakers originate from the same manufacturer as the Huatech Circuit Breakers previously sold in Australia since around 2006 (Circuit Breaker Origin Representation);

(d)    the New Powins Circuit Breaker now sold as VEP-VX5 is the same product as, or an updated model or version of, the corresponding Huatech Circuit Breaker (Circuit Breaker Same Product Representation);

(e)    Gelpag GmbH (or alternatively, Gelpag Advanced Technology GmbH or Gelpag AU) was the manufacturer of, and further or alternatively is the owner of the intellectual property rights in, the Huatech Products sold in Australia between 2005 to 2018 (Gelpag Representation); and

(f)    Powins, and further or alternatively, Gelpag AU, has the sole authority, or alternatively authority, of the manufacturer of the Huatech Products already installed in Australia, to provide servicing, spare parts and operational testing for all such products (Existing Products Affiliation Representation),

(together, Representations).

11    Huatech relies on the Representations for both its passing off and ACL cases.

12    Huatech puts its passing off case in two ways. First, on the basis of the substantial reputation of Huatech and its products as a source of manufacture of switchgear panels and vacuum circuit breakers, and second, alternatively, on the basis of the reputation of the AMS and VEP marks as indicia of origin for those products.

13    Huatech contends that the respondents have infringed or threaten to infringe the VEP Registration by the use (and/or threatened use) of the mark VEP (including as “VEP-VX5” or “GELPAG VEP”) in relation to circuit breakers, each of which is substantially identical or deceptively similar to the VEP Mark.

14    Huatech seeks declaratory, injunctive and pecuniary relief in this proceeding. Questions of pecuniary relief do not arise for determination at this stage.

15    The respondents filed an amended statement of cross-claim on 3 November 2022 (Amended Cross-Claim). They contend that Huatech has contravened ss 18 and/or 29 of the ACL, engaged in unconscionable conduct by making false and misleading representations to the respondents’ existing and potential customers, and breached confidentiality and good faith contractual obligations under agreements that it had entered into with Powins by misusing confidential information in communications with those existing and potential customers.

16    For the reasons that follow I have made the following principal findings:

(a)    the respondents made each of the Representations;

(b)    each Representation was misleading or deceptive and false or misleading;

(c)    by February 2019, the AMS and VEP marks of Huatech had acquired a significant reputation in the Australian market with customers and end-users in respect of switchgear panels and circuit breakers;

(d)    by February 2019, Huatech had not acquired a significant reputation in the Australian market with customers and end-users as a source of manufacture of switchgear panels and circuit breakers;

(e)    the respondents passed off the New Powins Products as those of, or as being associated with, the manufacturer of the Huatech Products or the business or goods provided by that manufacturer;

(f)    the respondents passed themselves or their businesses off as being associated with the manufacturer of the Huatech Products or the business or goods provided by that manufacturer, or having its sponsorship, licence or approval;

(g)    the respondents infringed the VEP Registration;

(h)    the passing off conduct of the respondents is sufficient to constitute a conscious and contumelious disregard for Huatech’s rights and an award of exemplary damages is appropriate;

(i)    given the nature and extent of the respondents’ contraventions of ss 18 and 29 of the ACL, passing off and trade mark infringement it is appropriate to grant the prohibitory injunctions, declarations and corrective advertising sought by Huatech;

(j)    the determination of the quantum of the damages and/or account of profits and exemplary damages to which Huatech might be entitled is to be the subject of a subsequent hearing;

(k)    the representations alleged in the Amended Cross-Claim either did not arise as alleged or to the extent that they did arise they were not materially misleading or deceptive or false or misleading;

(l)    the inferences arising from the statements in the publications relied upon by the respondents in the Amended Cross-Claim either did not arise or to the extent that they did arise, they were not false or misleading or could have given rise to any detriment to the respondents and they were not disseminated using any confidential information of the respondents provided to Huatech;

(m)    Huatech has not engaged in any conduct that could be fairly characterised as a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience; and

(n)    Huatech has not breached any implied nor express terms of good faith nor confidential provisions in its distribution and sales contracts with Powins.

EVIDENCE

Huatech’s witnesses

17    Huatech relies on affidavits from the following witnesses:

(a)    Mr Franklin Zheng (aka Zheng Minsheng) affirmed on 8 February 2021 and 30 September 2021;

(b)    Mr Teddy Lin (aka Lin Mingrui) affirmed on 8 February 2021, 20 August 2021 and 30 September 2021;

(c)    Mr Bing Ye affirmed on 7 February 2021 and 20 August 2021;

(d)    Ms Min Ding affirmed on 20 August 2021;

(e)    Mr William Zhu (aka Zhu Wenli) affirmed on 20 August 2021;

(f)    Mr Alan Whitham affirmed on 29 September 2021 and 12 December 2021; and

(g)    Dr Alfonso Juan Rene Rossi Perez (Dr Rossi) affirmed 29 September 2021.

18    Mr Zheng is the Vice-General Manager and Director of Huatech’s R&D Centre. He was one of the founders of Huatech and was responsible for designing the Huatech Products. He conceived the AMS and VEP brands. His evidence principally addressed the formation of Huatech and the development of its products. He was cross-examined.

19    Mr Lin is the Overseas Business Development Manager for Huatech. In the period since 2009, he has provided technical support for Australian distributors and end users of Huatech Products. Since 2015, he has also been responsible for promotional and sales support, quotations and specifications for commercial operations and relationships.

20    Mr Ye has been the Deputy General Manager of Huatech since 2016. He is responsible for Huatech’s corporate strategy implementation, commercial and marketing operations, sales support, and research and development. His evidence is directed at aspects of Huatech’s commercial operations, public statements made by Huatech and Huatech’s commercial relationships with Powins, Gelpag AU and other entities. He was cross-examined.

21    Ms Ding has been an in-house legal and intellectual property administrator for Huatech since 19 July 2011. Her evidence addresses the circumstances in which drafts of two letters dated 29 March 2019 and 30 October 2019 letters, the subject of the Amended Cross-Claim, were sent to Huatech’s Australian lawyers, Pipers Intellectual Property (Pipers). She was cross-examined.

22    Mr Zhu has been the General Manager of Huatech since 1 October 2016. He is responsible for all of Huatech’s domestic and overseas business operations, including in Australia. His evidence is directed at aspects of the cross-claim alleging that confidential information was provided to him and to Huatech. He was cross-examined.

23    I am satisfied that each of the Huatech witnesses answered questions put to them in cross-examination truthfully and to the best of their recollection. Not surprisingly, their oral evidence was less fluent and more stilted than their affidavit evidence. None was a native English speaker and each gave oral evidence with the assistance of an interpreter. Contrary to the submissions advanced by the respondents, I do not accept that there was any deliberate attempt to avoid questions or otherwise answer questions dishonestly by asking from time to time to give answers through an interpreter when pressed on significant matters. In assessing the credit of the Huatech witnesses, I have also taken into account the additional challenge for the Huatech witnesses that arose through the frequent use of negative propositions in questions, such as “didn’t he”, “wasn’t it” and “you never”, which were at times combined with complex questions.

24    Mr Martin Chen and Mr Albert Foo were directors of Leistung Energie Limited (Leistung Energie), the current distributor of the Huatech Products in Australia. One of the principal issues raised in the Amended Cross-Claim was whether Mr Chen and Mr Foo had improperly used customer lists of the respondents, and in particular that Mr Foo was able to contact customers of Powins directly because of confidential information given to him by Mr Chen. Much of the respondents’ challenge to the credit of the Huatech witnesses was focused on evidence concerning their knowledge of Powins’ concerns about Mr Chen’s relationship with Mr Foo, an allegedly fraudulent invoice prepared by Mr Foo, and directions that Huatech may have given internally that Mr Chen was not to be informed of purchase orders from Powins.

25    I am satisfied that, read as a whole and in context, contrary to the submissions advanced by the respondents, the responses given by the Huatech witnesses on these issues could not fairly be characterised as evasive, incomplete, argumentative or implausible. I accept that at times there appeared to be a certain sensitivity and defensiveness in their responses, but I am satisfied that this was largely attributable to Mr Chen being a former employee of Huatech, the rigours of cross-examination, technical difficulties that arose in the course of the video technology being used, translation issues and, given the allegations made in the Amended Cross-Claim, concerns about what Mr Chen and Mr Foo might have done with customer information of Powins. As the Huatech witnesses acknowledged, internal directions had been given within Huatech following Mr Zhu’s meeting in March 2019 with two Powins’ executives, Mr Dean van Wijk and Mr Julian Rauwendaal, both of whom gave evidence in the proceedings, that had the effect of limiting the dissemination of information concerning purchase orders of Powins to Mr Chen.

26    Mr Whitham is a consultant with 45 years’ experience installing and maintaining power systems for industrial and commercial applications, including switchgear, and working with original equipment manufacturers. He has approximately 25 years’ experience consulting in relation to the procurement, installation, commissioning and maintenance of electrical equipment. He gave evidence as an independent expert that AMS and VEP are only associated with the Huatech Products and are not generic terms for switchgear and circuit breakers in Australia. He was cross-examined.

27    Dr Rossi is a consultant engineer with approximately 45 years’ experience as an electrical engineer for industrial and commercial applications. He gave evidence as an independent expert that AMS and VEP are product names associated with Huatech as the manufacturer of Huatech Products and those marks are not generic descriptors nor acronyms for switchgear and circuit breakers in Australia. He was cross-examined.

28    Both Mr Whitham and Dr Rossi were impressive witnesses. They responded directly and concisely to the questions that were put to them in cross-examination and their affidavit evidence was not relevantly disturbed. The challenges to their independence and alleged lack of impartiality were misconceived. The respondents submitted that Mr Whitham should never have been put forward as an expert witness by Huatech because it was clear from his email correspondence that “he had a long term friendship and business relationship with somebody Powins had dismissed in disgrace from its organisation”. There was nothing in the email correspondence that Mr Whitham put before the Court in his second affidavit that relevantly impacted on Mr Whitham’s independence. Mr Whitham candidly acknowledged in the course of his cross-examination that when he received the notice from Powins that the former employee had been dismissed, he “was disgusted with that piece of paper being sent the way it was” and his view was that if a company wanted to terminate someone they would send an email saying “he no longer works for us and please forward all future [correspondence] to whoever you nominate, not send a letter like that out”. He was “totally disgusted with that attitude” by Powins but it was a “kneejerk reaction” on his part and it did “not stop [him] from continuing working with POWINS in the future on other issues”.

29    Equally, Dr Rossi’s evidence concerning his knowledge of the dismissal of that employee and subsequent communications with the employee did not cause me to doubt his independence. Dr Rossi acknowledged that he had been referred work by the employee. He stated, however, that he was aware that the dismissal was “under litigation” and he emphatically denied that he had ever enquired into the circumstances of the dismissal or discussed it with the employee. There is no reason why I should not accept his evidence on this issue.

30    Nor do I accept that Mr Rossi’s location in Western Australia relevantly precludes him from giving evidence as to the extent of the use of AMS in Australia. The respondents did not point to any evidence that might suggest that the switchgear industry was materially different in other states and territories in this country.

Respondents’ witnesses

31    The respondents rely on affidavits from the following witnesses:

(a)    Mr Dean van Wijk sworn on 8 April 2021, 11 August 2021, 27 September 2021 and 2 December 2021;

(b)    Mr Julian Rauwendaal sworn on 11 August 2021, 3 December 2021 and 16 December 2021;

(c)    Mr Justin Senescall sworn on 22 February 2021;

(d)    Mr Noel Sankey sworn on 18 May 2021;

(e)    Mr Antonio Muguira sworn on 30 July 2021;

(f)    Mr Mark Brown sworn on 3 December 2021; and

(g)    Mr William Redmond sworn on 16 December 2021.

32    Mr van Wijk has been the general manager of the Queensland office of Powins since January 2015. He is responsible for the conduct of the day-to-day business operations of Powins, including sales, product management and client liaison. Prior to his employment by Powins, he had over 16 years’ experience in the electrical engineering industry. He was cross-examined.

33    Mr Rauwendaal has been the mining manager for Powins since January 2015 and the Powins “Operations Manager Eastern Region” since March 2018. He has over 27 years’ experience in the electrical switchgear design and manufacturing industry. He was cross-examined.

34    Both Mr van Wijk and Mr Rauwendaal were unsatisfactory witnesses. They were argumentative, partisan, defensive and evasive. They had a pronounced tendency not to answer questions directly and both gave long-winded responses and commentary on issues at best only tangentially relevant to the questions they had been asked.

35    The following exchange in the course of the cross-examination of Mr van Wijk was a representative example of his approach to giving evidence. After having his attention drawn to the agreement that Powins entered into with Gelpag GmbH on 8 March 2019, the cross-examination proceeded as follows:

Okay. Do you agree that you were in a hurry to have the agreement signed urgently at the beginning of March?---We were – we were not in a hurry to sign the agreement.

Do you agree that there was some urgency in having the agreement signed, because tenders for three customers, including BHP, were under review?---I – when I – we not – we were not in – we were not in a rush to sign – sign the agreement, because there was no – they didn’t have a Type Test for a product. We knew that. I don’t – I don’t know what you’re referring to, in terms of BHP tenders. Maybe if you can take me to those and I can have a look at that, then I could understand.

Could the witness please be shown VWX5. If we can go across to the third page of that document, down the bottom. It should be number 61. If we could just zoom in. Thank you. Do you see there, there’s an email from you to Charles Sher on 11 March?---Yes.

You say:

Charles, find attached the signed copy of the distributor agreement for your urgent actioning. Please sign the attached and send back to me electronically for immediate use. I have posted the original to you for signing as well, which

– if you could kindly send me back a copy, that would be good.

And then you say:

I require this back urgently for BHP, Mount Isa and Rio Tinto current tenders which are under review for approximately 60 panels.

Do you see that?---Correct.

So, do you agree with me that there was urgency for you to get this contract signed on 11 March, three days after you had issued the announcement?---Yes, but this doesn’t – this doesn’t – this agreement doesn’t include the conversations we had, in terms of providing a Type Tested product. It also doesn’t take into consideration that we would tender packages for BHP, Mount Isa and Rio Tinto, and those would take, in effect, up to six – six to nine months to be awarded to a company.

HIS HONOUR: Mr van Wijk, did you need this signed distributor agreement urgently from Mr Sher, as at 11 March 2019?---Yes.

And why did you need it urgently?---We – we required it urgently to – at that time, Huatech and its distributors had – had already informed all of our clients that POWINS no longer had access to their products, and could no longer service the Australian market, in terms of medium-voltage switchgear. I required this to send out to our clients to say we had signed an agreement with GELPAG switchgear and were – and we would have a product that we would be able to service the market with.

Did you need it urgently - - -?---At that time - - -

Yes. Did you need it urgently for BHP, Mount Isa and Rio Tinto’s current tenders?---We submitted it as part of those tenders to say that we did have a continuity of product.

So you did require it urgently for BHP, Mount Isa and the Rio Tinto current tenders?---Correct.

That is the signed agreement?---Yes.

36    Mr Rauwendaal’s advocacy was particularly prominent in his evidence in relation to the content of the communications with the respondents’ customers. This evidence included that references to products being identical in those communications was meant to convey only that they were identical in appearance, namely the colour and shape of the box in which the products were located, and that references to the New Powins Circuit Breaker being an updated model or version of the Huatech Circuit Breaker was only intended to convey that the two products were interchangeable and were 100% compatible.

37    Further, I do not accept, contrary to the submissions advanced by the respondents, that the concessions made by Mr Rauwendaal in the course of his cross-examination after the lunch break should be given little weight on the basis that he did not understand questions or that he was tired. Rather, I am satisfied the concessions were wholly consistent with the content of the contemporaneous documents and the apparent logic of events. These concessions included the following, in relation to the reference to the installation of 4,000-plus Huatech Switchgear Panels in an email exchange with EDL Energy in January 2020:

Continuing:

For your interest only, I attach brochure of the POWINS AMS12 GELPAG switchgear with 4000-plus panels installed.

?---    Yes.

Now, based on the answers you’ve given to previous questions, you would accept that you understood, at the time you sent this email, that the 4000-plus panels installed could only possibly refer to the Huatech product and not to the product that you were now selling as POWINS AMS12?---Yes.

And so you understood that to be misleading?---Yes. I – as – as I spoke before, the 4000 panels I spoke of was of – of GELPAG. That’s what I hoped to convey to the gentleman.

You understood that what you had said was misleading?---Yes.

38    Nor do I accept, contrary to the respondents’ submissions, that Mr Rauwendaal’s confrontational and argumentative approach in the course of his cross-examination can be explained away on the basis that he was “a true tradesperson who has not received accolades from university”. His advocacy in giving evidence reflected a sophisticated understanding of the issues in play in the proceedings.

39    Ultimately, I was not able to place any material weight on the evidence of Mr van Wijk or Mr Rauwendaal on matters in dispute, except to the extent that it was against interest or corroborated by contemporaneous documents.

40    Mr Muguira has been employed by MEHE Electrical Engineering Consultants (MEHE) as a registered electrical engineer since July 2012. His role at MEHE involves electrical engineering design and consulting, electrical and power system engineering. He has over 35 years’ experience working on electrical design projects in mining and heavy industry sectors in Australia, New Zealand and Indonesia. During his career he has been primarily involved with the design and operation of medium voltage switchgear, including air-insulated type switchgear and its components. He gave evidence of the use of acronyms for switchgear products in the Australian electrical industry. He was cross-examined.

41    Mr Sankey has over 39 years’ experience in the electrical industry. He is currently an operations manager for TGOOD Australia Pty Ltd. He was previously employed in a variety of roles within the switchgear industry, including as a medium voltage switchgear national product manager. He also gave evidence of the use of acronyms for switchgear products in the Australian electrical industry. He was cross-examined.

42    Mr Muguira generally answered questions directly and without prevarication. The same could not be said for Mr Sankey. Mr Sankey found it difficult to focus on the questions he was asked, he was often argumentative and he appeared to be more concerned with providing answers that might assist the respondents rather than making appropriate concessions or clarifications when confronted with documents or propositions inconsistent with his generalised affidavit evidence.

43    Moreover, Mr Sankey’s affidavit evidence, to which he attempted to adhere in the course of his cross-examination, that AMS and VEP were not specific to any manufacturer, was contradicted by a licence agreement between Lend Lease i.Power Solutions Pty Ltd and Lend Lease i.Power Solutions (WA) Pty Ltd (iPower), Huatech and Gelpag GmbH dated 29 March 2012 that identified the marks to be licensed pursuant to the agreement as AMS and precluded the two iPower corporations, as licensees, from manufacturing, marketing or selling “the Contract Products to accommodate other brand of VCB instead of VEP”. The “Contract Products” were identified as AMS-12, AMS-24 and AMS-36.

44    When confronted with this inconsistency in cross-examination, Mr Sankey sought to deflect the significance of the inconsistency, as illustrated in the following exchanges with his cross-examiner:

And so do you agree with me that when i.Power Solutions used BV2 AMS on its products while you were the medium voltage manager this is precisely what it was doing. It was adding the BV2 prefix to the licensed mark AMS?---Well, at that time, we had been using that for the last – since I started in 2007, so it meant nothing to me. It was just what we had been using for that time.

…

So do you agree with me that it is crystal clear in this agreement that VEP was Huatech or GELPAGs brand of vacuum circuit breaker?---No, it’s not that – I – as I said, I always understood the VEP to mean vacuum embedded pole.

Well, that’s not the question I asked you. I asked you earlier whether your evidence was that it was only used as a – to generally describe a vacuum embedded pole irrespective of who manufactured or supplied the embedded pole vacuum circuit breaker and you said “yes”. What I’m putting to you is that this is entirely inconsistent with that evidence?---But that’s what they’ve named it. I – I have no – I had no influence on what they named their product.

Well - - -?---They could call it anything they liked.

45    Neither Mr Muguira nor Mr Sankey was able to identify any use in Australia of the acronyms AMS or VEP by any manufacturer other than Huatech. In the absence of such evidence, I was not able to place any weight on their evidence to the extent that it was to the effect or might otherwise have inferred that AMS and VEP were widely used as acronyms in the Australian electrical industry for switchgear and circuit breaker products.

46    Mr Senescall is the principal of Seneworth Legal Partners. He was previously engaged by the respondents to act for them in relation to the disputes the subject of these proceedings. He gave evidence concerning the responses by the respondents to the letters written by the law firm, Pipers, on behalf of Huatech. He was not cross-examined.

47    Mr Brown has been employed by Powins since about 1 March 2018 as its Operations Manager in Western Australia. He was engaged as a consultant to Powins between 2015 and 2018 in relation to Powins’ Medium Voltage range of switchgear products. He worked for iPower for approximately one to one and a half years from 2002 and became familiar with Gelpag GmbH and subsequently formed a working/business relationship with Mr Sher. He gave evidence that in his experience Australia was a unique market for the sale of switchgear, and mechanisms are often developed here in response to Australian specific problems or compliance issues. He also gave evidence of enquiries that he had received in communications with two customers in 2019 that had led to him sending emails to them concerning the “GELPAG MSA” and “POWINS AMS” products. He was not cross-examined.

48    Mr Redmond is a solicitor of Redmond + Redmond lawyers. He gave evidence in relation to Mr Charles Sher’s alleged inability to give oral evidence in the proceedings. He was not cross-examined.

BACKGROUND

Electrical switchgear products

49    Electrical switchgear products monitor and regulate the flow of power in electrical utilities and other industrial facilities, protecting against surges and ensuring that electrical power systems are safe for use.

50    Electrical switchgear products include “switchgear panels”, which are metal housing units containing electrical fuses, switches, power conductors, circuit breakers and controls.

Distribution of the Huatech Products

51    Since at least 2007, Huatech has promoted and sold the Huatech Products to customers in Australia through Huatech’s channel partners and distributors, including Gelpag GmbH.

2016 Distribution Agreement

52    In February 2016, Huatech and Powins entered into an agreement (2016 Distribution Agreement) under which Powins was appointed as a non-exclusive distributor of Huatech’s products for a period of three years within Australia, Fiji, New Caledonia and PNG.

53    Clause 1 of the 2016 Distribution Agreement defined “Products” as follows:

Products shall mean the products manufactured or marketed by the Company listed in Schedule 1.

54    The following products were listed in Schedule 1:

Schedule 1    List of Products

Products shall mean

AMS type medium voltage air insulated metal-clad switchboards, including

AMS – 12: 12kV, 25/31.5/40/50kA, 630/1250/2500/3150A

AMS – 24: 24kV, 25/31 .5kA; 630/1250/2500A

AMS – 36: 36kV, 25/31.5kA; 630/1250/2000/2500/3150A

55    Clause 3.3 of the 2016 Distribution Agreement stated:

3.3 Site Services and/or After-sales

[Powins] shall be responsible for all after-sales service of the Contract Products within the warranty period of the Contract Products.

56    The warranty period was the earlier of 18 months from the date of delivery or 12 months from the date of installation/commissioning.

57    Clauses 6.1 and 6.2 of the 2016 Distribution Agreement stated as follows:

6.1 Use of the Company name

[Huatech] expressly prohibits any direct or indirect use, reference to, other employment of its name, trademarks, or trade name other than the purpose of this Agreement. All advertising and other promotional material will be submitted to [Huatech] at least two (2) weeks in advance and will only be used if [Huatech] consents thereto, which consent shall not be unreasonably withheld.

6.2 Intellectual Property Rights

6.2.1 [Powins] shall promptly notify [Huatech] in writing of any infringement, or suspected or threatened infringement, of the Information, the Licensed Marks or any of the Company’s Intellectual Property Rights relating to the Products which may come to [Huatech]’s knowledge during the term of this Agreement. Powins shall not take further steps in respect of such infringement without the Company’s prior written instructions.

58    Clause 13.1 of the 2016 Distribution Agreement provided:

13.1 Arbitration Huatech

Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination shall be referred to and finally resolved by arbitration at the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the UNCITRAL Rules as at present in force and as may be amended by the rest of this Clause.

59    After delivery of the Huatech Products, Powins completed final wiring and assembly in Australia in order to sell and market the completed switchgear product.

60    In the period between 2016 and January 2019, Powins promoted and sold the Huatech Products in Australia under or by reference to the marks AMS and VEP respectively.

2018 Sales Contract

61    In or about May 2018, Powins and Huatech entered into a contract with an effective date of 7 April 2018, which allowed Powins to purchase the Huatech Products directly from Huatech (2018 Sales Contract).

62    It was a term of the 2018 Sales Contract that:

13.4 Confidentiality

All Parties agree that based upon the principle of honesty and good-faith, neither Party will disclose, use or allow a third party to use the commercial secrets obtained in the process of execution and performance of the Contract. Otherwise, the infringe Party shall indemnify the damaged Party for the direct losses suffered there from.

Termination of 2016 Distribution Agreement

63    In February 2019, the 2016 Distribution Agreement came to an end.

64    The 2016 Distribution Agreement was not renewed upon termination.

Appointment of Leistung Energie as exclusive distributor

65    On 23 August 2018, Huatech and Leistung Energie entered into a confidential agreement (2018 OEM Agreement).

66    Since February 2019, the Huatech Products have been distributed through MVLV Power Solutions Pty Ltd and Plummers Industries Pty Ltd, who have been engaged by Leistung Energie as Huatech’s exclusive channel partner and distributor under the 2018 OEM Agreement.

2019 Gelpag Distribution Agreement

67    On or about 8 March 2019 Powins and Gelpag GmbH entered into an agreement for the distribution of the New Powins Products (2019 Gelpag Distribution Agreement).

Powins trade mark applications

68    On or about 15 March 2019:

(a)    trade mark applications no. 1996288 (GELPAG AMS in class 9), no. 1996289 (GELPAG VEP in class 9) and no. 1996290 (GELPAG MSA in class 9) were filed naming Gelpag AU as applicant; and

(b)    trade mark application no. 1996287 (POWINS AMS in class 9) was filed naming Powins as applicant,

(together, the Trademark Applications).

69    The class 9 filing for each of the Trademark Applications included:

Building automation installations; Electronic digital automation installations for measuring building services installations; Electronic digital building automation systems; Engineering design software; Electrical switchgear; Electric control boxes; Switchgear (electric); Telemetry apparatus; Telemetry installations; Terminal boxes (electrical); Boxes adapted for housing electric instruments; Electric circuit breakers; Electric power units; Electric power analysers; Electric power converters; Electric power line detectors; Switch cabinets (electric); Switching boxes for use in electrical engineering; Switching devices for electric contactors; Switching devices for electric relays; Switching power supply apparatus; Electric transformers; Apparatus for accumulating electricity; Electrical accumulators; Instruments for accumulating electricity; Electric regulating apparatus; Electric regulating modules; Electrical apparatus for use in regulation; Electronic regulating apparatus; Regulating apparatus, electric; Regulating transformers; Electronic controlling apparatus; Power units for supplying (other than generating) electrical current; Electric current transformers; Electric current adaptors; Electric current control devices; Electric current distribution apparatus; Switch mode power supply apparatus (electric); Electric circuits; Distribution units (electricity); Electrical distribution installations; Electricity distribution apparatus; Electricity distribution instruments; Electric power supplies (other than generators); Computer software; Application software’: Australian Trade Mark Application No. [1996287, 1996288, 1996289 and 1996290] (published, under examination, not accepted, at the time of filing this pleading).

[Emphasis omitted.]

New Powins Switchgear Panels and New Powins Circuit Breakers

70    Since at least March 2019, the respondents have offered for sale and sold the New Powins Products in Australia.

LEGAL PRINCIPLES

Misleading or deceptive conduct, and false or misleading representations

71    Section 18 of the ACL provides:

(1)    A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)    Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).

72    Section 29(1) of the ACL relevantly provides:

A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a)     make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

…

(g)     make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or

(h)     make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation.

73    The principles and authorities in relation to ss 18 and 29 of the ACL are well established.

74    First, although s 18 is directed at conduct and s 29 is directed at representations, there is no material difference between the expressions “misleading or deceptive” in s 18 and “false or misleading” in s 29: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450; [2020] FCAFC 130 (TPG FCAFC) at [21] (Wigney, O’Bryan and Jackson JJ); Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493 at [88] (O’Callaghan J).

75    Second, it is necessary to identify the impugned conduct and then to consider whether that conduct, considered as a whole and in context, is misleading or deceptive or likely to mislead or deceive: Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 (Google) at [89], [102] and [118] (Hayne J); Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 (Campomar) at [100]–[101] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). As put by McHugh J in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 (Butcher) at [109]:

It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation’s conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct.

[Footnotes omitted.]

76    In TPG FCAFC, the Full Court (Wigney, O’Bryan and Jackson JJ) emphasised the need to look at all relevant circumstances in order to determine whether the impugned conduct was misleading or deceptive or likely to mislead or deceive. Their Honours stated at [25]:

A question that commonly arises is whether a publication or communication is misleading when it contains a misleading statement in one place but also contains another statement, perhaps in a different place in the publication or communication, which remedies the misleading character of the first statement. Ultimately, the question is one of overall assessment of the publication or communication. The correct approach was summarised by Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647 (at [214]) (upheld in Valve Corporation v Australian Competition and Consumer Commission (2017) 258 FCR 190, noting that there was no challenge to his Honour’s relevant statements of principle (recorded at [158]):

One consequence of the need to consider the conduct in light of all relevant circumstances is that any allegedly misleading representation must be read together with any qualifications and corrections to that statement. Hence, although a qualification to a statement might be effective to neutralise an otherwise misleading representation, this might not always be so, particularly if the misleading representation is prominent but the qualification (often linked to the representation by an asterisk) is not: Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1, 17 [37] (Stone J). As Keane JA expressed the point, the qualifications must have “the effect of erasing whatever is misleading in the conduct”: Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 [83].

77    Third, conduct is misleading or deceptive or likely to mislead or deceive if it has the tendency to lead into error, that is, there is a sufficient causal link between the conduct and the likely error on the part of persons exposed to the conduct: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 (TPG HCA) at [39] (French CJ, Crennan, Bell and Keane JJ). Consumers may be lead into error if particular words are selected for emphasis and the balance are relegated to relative obscurity as many persons will only absorb the general thrust of information presented to them: TPG HCA at [51] (French CJ, Crennan, Bell and Keane JJ).

78    Conduct is likely to mislead or deceive if there is a real and not remote chance or possibility that a person is likely to be misled or deceived: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87 (Bowen CJ, Lockhart and Fitzgerald JJ); Butcher at [112] (McHugh J); TPG FCAFC at [22(a)] (Wigney, O’Bryan and Jackson JJ). Mere confusion or wonderment will not ordinarily establish misleading or deceptive conduct: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 (Taco Bell) at 201 (Deane and Fitzgerald JJ).

79    Fourth, where the impugned conduct is directed to the public generally (or some relevant section of the public), the Court must consider the likely characteristics of the persons who comprise the relevant class of persons to whom the conduct is directed and consider the likely effect of the conduct on ordinary or reasonable members of the class, disregarding reactions that might be regarded as extreme or fanciful: Campomar at [101]–[105] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Kraft Foods Group Brands LLC v Bega Cheese Ltd (2020) 377 ALR 387; [2020] FCAFC 65 (Kraft) at [236] (Foster, Moshinsky and O’Bryan JJ).

80    Fifth, it is not necessary to show actual deception nor to adduce evidence from persons to show that they were actually misled or deceived: see, eg, Google at [6] and [9] (French CJ, Crennan and Kiefel JJ); Flexopack SA Plastics Industry v Flexopack Australia Pty Ltd (2016) 118 IPR 239; [2016] FCA 235 (Flexopack) at [265] (Beach J). Further, it is not necessary to show any actual or completed transaction entered into, although the conduct must be more than merely transitory or ephemeral: Flexopack at [268]-[269] (Beach J).

81    Sixth, provisions proscribing misleading or deceptive conduct may be contravened at the point where members of the target audience have been seduced into the seller’s “web of negotiation” or “marketing web” by the impugned conduct, even if the consumer may come to appreciate the true position before a transaction is concluded: TPG HCA at [50] (French CJ, Crennan, Bell and Keane JJ).

Passing off

82    The tort of passing off protects a right of property in business or goodwill built up by the activities of the plaintiff: AG Spalding & Bros v AW Gamage Ltd (1915) 32 RPC 273 at 284 (Lord Parker); Campomar at [108] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

83    Passing off is a remedy for the invasion of property in a mark, name or get-up which has been improperly used: AMI Australia Holdings Pty Ltd v Bade Medical Institute (Australia) Pty Ltd (No 2) (2009) 262 ALR 458; [2009] FCA 1437 at [81] (Flick J). In Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 (Reckitt), Lord Oliver stated at 499:

The law of passing off can be summarised in one short general proposition — no man may pass off his goods as those of another.

84    There are three core elements to the tort of passing off which a plaintiff must establish: Reckitt at 499 (Lord Oliver); Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd (2020) 156 IPR 413; [2020] FCA 1530 (Allergan) at [447] (Stewart J); Flexopack at [278]-[279] (Beach J).

85    First, an applicant must establish a goodwill or reputation attached to the goods or services which they supply in the mind of the purchasing public by association with the identifying “get-up” under which their particular goods or services are offered to the public: Reckitt at 499 (Lord Oliver). The plaintiff’s own indicium must be known in the relevant market: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 (ConAgra) at 343 (Lockhart J).

86    The plaintiff must establish that its product bears a distinctive character within the market: Cadbury Schweppes Pty Ltd v Pub Squash Co Ltd [1980] 2 NSWLR 851 at [22]; (1980) 32 ALR 387 at 393 (Lord Scarman). This must be such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods or services. Demonstrating this element involves proof of a substantial number of persons who are aware of the plaintiff’s product and who are thus potential customers: Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; [2013] FCAFC 59 (Knott Investments) at [14] (Allsop CJ); Taco Bell (Beach J).

87    The size and extent of the class will vary according to the circumstances and will be measured by reference to the relevant group or section of the public most likely to be customers: Knott Investments at [14] (Allsop CJ).

88    The nature of the class of persons who may be deceived or confused will necessarily be informed by the nature of the good or service in question and the characteristics of that class: Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (2017) 251 FCR 379; [2017] FCAFC 83 at [71] (Greenwood, Jagot and Beach JJ).

89    Relevantly, it is not necessary that a plaintiff show a business presence in Australia to be successful in an action for passing off, provided it can establish a local reputation: ConAgra at 344 (Lockhart J); Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc (2020) 385 ALR 514; [2020] FCAFC 235 (Hashtag FCAFC) at [126]-[127].

90    The relevant date for assessing reputation is the commencement of the relevant conduct by the respondents, and to the extent that a respondent’s conduct may have eroded an applicant’s goodwill, it should not have the benefit of any such erosion: Flexopack at 280 (Beach J).

91    Customers need not be aware of the plaintiff’s actual identity provided they recognise the plaintiff’s product by the indicium in suit: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 189 (Bowen CJ).

92    In Birmingham Vinegar Brewing Co Ltd v Powell [1897] AC 710, Lord Halsbury LC said at 713-14:

I am satisfied that a person who puts forward this ‘Yorkshire Relish,’ made as it is by the present defendants, is representing it as being a particular manufacture. It may be true that the customer does not know or care who the manufacturer is, but it is a particular manufacture that he desires. He wants Yorkshire Relish to which he has been accustomed, and which it is not denied has been made exclusively by the plaintiff for a great number of years. This thing which is put into the hands of the intended customer is not Yorkshire Relish in that sense. It is not the original manufacture. It is not made by the person who invented it. Under these circumstances it is a fraud upon the person who purchases to give him the one thing in place of the other.

93    To the same effect, Lord Herschell said at 715:

I think that the fallacy of the appellants’ argument rests on this: that it is assumed that one trader cannot be passing off his goods as the manufacture of another unless it be shewn that the persons purchasing the goods know of the manufacturer by name, and have in their mind when they purchase the goods that they are made by a particular individual. It seems to me that one man may quite well pass off his goods as the goods of another if he passes them off to people who will accept them as the manufacture of another, though they do not know that other by name at all.

94    Second, an applicant must establish a misrepresentation by the respondent to the public (intentional or otherwise) leading or likely to lead to a belief by the public that the goods or services offered are those of the applicant: Reckitt at 499 (Lord Oliver). Proof of actual deception is not required: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 at [62] (Weinberg and Dowsett JJ). However, proof of deliberate borrowing of features or get-up of a rival’s product provides evidential value: Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 (Australian Woollen Mills) at 657 (Dixon and McTiernan JJ). This is not confined to cases of “deliberate” dishonesty — it is enough that the “allegedly infringing trader borrows aspects of the other trader’s mark”: In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (2020) 377 ALR 116; [2020] FCA 193 at [121] (Katzmann J), citing Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd (2018) 264 FCR 422; [2018] FCAFC 105 at [97] (Murphy, Gleeson and Markovic JJ). The role of intention will always depend on the circumstances of the case.

95    Not every form of conduct causing confusion or even deception will constitute passing off. As Rares J stated in Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32; [2008] FCA 639 at [75]:

In cases of passing-off where the wrongful appropriation of the reputation of the plaintiff or that of his goods is in question, a plaintiff who used descriptive words in his trade name would find out that quite small differences in a competitor’s trade name would render the latter immune from action. The law recognises the possibility of blunders by members of the public when descriptive words are used by two traders as part of their respective trade names. But, Stephen J said the risk of confusion must be accepted because “to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe”: Hornsby [Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216] at CLR 229; ALR 648–9; IPR 826–7.

96    Traders have a right to describe their products and to use their own names. The law also recognises a doctrine of “honest concurrent user”: General Electric Co (of USA) v General Electric Co Ltd [1972] 1 WLR 729 at 743 (Lord Diplock). This assumes that the honest concurrent use will result in some risk of deception, but provides an equitable compromise between the competing interests of the concurrent users and those of the public and other traders.

97    It is not necessary that the representation be fraudulent: ConAgra at 344-5 (Lockhart J), 365 and 372 (Gummow J).

98    Third, Huatech must show that it has suffered, or is likely to suffer, damage by reason of the misrepresentation: Reckitt at 499 (Lord Oliver).

REPRESENTATIONS

Overview

99    The Representations provide the foundation for the ACL and passing off claims that Huatech advances in these proceedings. It is first necessary to determine if the Representations were conveyed by the respondents and then to determine whether, to the extent that they were conveyed, were they false or misleading?

Were the Representations conveyed?

Respondents’ Publications and Customer Communications

100    Huatech alleges that the Representations were conveyed in the promotional and advertising materials of the respondents annexed to the 2FASOC (Publications) and in the direct communications by the respondents with their customers identified in Schedule 11 to the 2FASOC (Customer Communications).

101    Huatech alleges the Representations were made by both Powins and Gelpag AU because Gelpag AU was a wholly owned subsidiary of Powins, the two companies shared a common (and sole) director, the respondents admit that the New Powins Products were sold by “the Respondents”, the respondents positively plead in the cross-claim that their customers are customers of the “Cross-claimants” and that the statements made by Huatech directed at Powins gave rise to inferences about both respondents. Huatech submits that the conduct in relation to the Publications and the Customer Communications was therefore jointly engaged in by Gelpag AU or was conduct authorised by Gelpag AU. The respondents did not dispute these contentions of Huatech. In the context of these contentions and submissions I accept that both respondents are responsible for the distribution of the Publications and the Customer Communications.

102    The Publications are pleaded in the 2FASOC as comprising:

(a)    the document entitled “Announcement of Exclusive Distributor POWINS Pty Ltd” on and since 8 March 2019, (2019 Announcement);

(b)    a brochure entitled “Powins Switchgear” on a date no later than 27 February 2019, (New Powins Switchgear Brochure);

(c)    a LinkedIn post entitled “POWINS Appointed Exclusive Distributor for GELPAG Switchgear” that was published in or about March 2019 (March 2019 LinkedIn Post);

(d)    a quarter-page advertisement published in the January-March 2020 edition of Industrial Electrix magazine (First 2020 Advertisement);

(e)    a four-page feature entitled “Australian Electrical Turnkey Solution Provider” published in the January-March 2020 edition of Industrial Electrix magazine and republished by Mr Dean van Wijk through a LinkedIn post in or about March 2020 (First 2020 Feature);

(f)    a three-page feature entitled “Australian Electrical Turnkey Solution Provider” which Powins caused to be published on pp 106-8 of Australian Power Technologies’ “Purchasing Directory – Transmission and Distribution – Industrial Electrix” on about 21 May 2020 (Second 2020 Feature);

(g)    a further LinkedIn Post published by Mr Dean van Wijk on or about 23 May 2020 (May 2020 LinkedIn Post);

(h)    a cover story entitled “POWINS AMS 12kV GELPAG Switchgear and Switchroom the Choice of Another Brownfield Upgrade in the Mt Isa Region” published in Australian Power Technologies’ “Transmission and Distribution”, Issue 3 June-July 2020 (July 2020 Cover Story); and

(i)    a three-page feature entitled “Australian Electrical Turnkey Solution Provider” published in Australian Power Technologies’ “Transmission and Distribution”, Issue 3 June-July 2020 (Third 2020 Feature).

103    The Customer Communications comprise the emails listed in Schedule 11 of the 2FASOC sent by the respondents to their customers in the period between 20 March 2019 and 6 February 2021 and two telephone conversations on 20 March 2019.

104    It is alleged in the 2FASOC that Powins has and, alternatively, Powins and Gelpag AU have, published and distributed, or authorised the publication and distribution of the Publications and the Customer Communications.

Submissions

Huatech

105    Huatech submits that the Publications and the Customer Communications demonstrate a prolonged and extensive pattern of seeking to leverage off the commercial reputation of Huatech, its products and its marks since February 2019. It further submits that the Court ought to find that the respondents intended to appropriate Huatech’s commercial reputation and that the respondents intentionally adopted identical (AMS and VEP) and similar (MSA) marks to Huatech’s registered and unregistered trademarks and brand names of which they were aware.

106    Huatech submits that the steps taken by the respondents to secure the GELPAG domain name (prior to the 2016 Distribution Agreement expiring), to license the GELPAG trade mark, and to use references to GELPAG without any attempt to disclaim the “historical” install base of the Huatech Products or differentiate their products from the Huatech Products, are part of this course of conduct.

107    Huatech submits that, in making the Representations, the respondents intentionally engaged in that conduct for the purposes identified above and, in so doing, misrepresented that there was an affiliation between the respondents and the New Powins Products, on the one hand, and Huatech and the Huatech Products, on the other hand, for the respondents’ benefit.

108    In order to make good these propositions, Huatech has identified various factors that it contends were employed in various combinations in the Publications and Customer Communications and on which it relies to establish that the respondents made each of the Representations (Affiliation Factors).

109    Huatech relies on the following Affiliation Factors, in various combinations, as giving rise to the Switchgear Same Product Representation, the Circuit Breaker Same Product Representation, the Switchgear Origin Representation and the Circuit Breaker Origin Representation (together, Same Product and Origin Representations):

(a)    using AMS (Switchgear Panels only) (Use AMS);

(b)    emphasising the letters A M S (Switchgear Panels only) (Emphasise A M S);

(c)    using VEP (Circuit Breakers only) (Use VEP);

(d)    emphasising the letters V E P (Circuit Breakers only) (Emphasise V E P);

(e)    using MSA (Switchgear Panels only) (Use MSA);

(f)    emphasising the letters M S A (Switchgear Panels only) (Emphasise M S A);

(g)    referring to the customers’ “install base” or “installed product” of Huatech Products (whether referred to as “GELPAG” or otherwise) in communications about the New Powins Products (Cite Customer Install Base);

(h)    referring to the Australia-wide or worldwide install base of the Huatech Products (whether referred to as “GELPAG” or otherwise) in communications about the New Powins Products, including references to “thousands of panels” in communications about the New Powins Products (Cite Total Install Base);

(i)    referring to the effect of “the previous switchgear range (2005-2018)” or “the original GELPAG switchgear released and sold in Australia from 2005-2016” or “existing GELPAG switchgear installed from 2005” in communications about the New Powins Products (Cite Previous Range);

(j)    stating that the New Products are “identical” to the Huatech Products (Identical). This included a number of statements that the products were “identical and interchangeable with” the previous products. There was no clear explanation as to why “identical” would be necessary or appropriate if mere interchangeability or equivalence was all that was sought to be conveyed;

(k)    stating or implying that the New Powins Products are what used to be sold as GELPAG AMS, POWINS AMS or BV2 AMS (Former Name Affiliation);

(l)    stating or implying that the New Powins Products are what used to be sold or serviced by Powins or iPower (Continuation of Supply). This includes references to the respondents having a type tested product at any time between February 2019 and 4 July 2019; and

(m)    responding to queries for Huatech Products or parts by offering a “GELPAG” New Product or part and/or asking the customer to change the part number/description in their system (Product Switch).

110    Huatech relies on the following Affiliation Factors, in various combinations, as giving rise to the Gelpag Representation:

(a)    Cite Customer Install Base;

(b)    Cite Huatech Install Base or Cite Total Install Base;

(c)    stating or implying that the Huatech Products were manufactured by Gelpag GmbH (Gelpag Manufacture);

(d)    stating or implying that Gelpag GmbH owns the intellectual property rights in the Huatech Products (Gelpag IP); and

(e)    stating or implying that the New Powins Products were based on the Huatech Products’ design (Upgraded Design).

111    Huatech relies on the following Affiliation Factors, in various combinations, as giving rise to the Existing Products Affiliation Representation:

(a)    stating or implying that the respondents are “authorised” in relation to existing product (R Authority);

(b)    stating or implying that the respondents have “sole authority” in relation to existing product (R Sole Authority);

(c)    stating or implying that Huatech does not have “authority” in relation to existing product (Huatech No Authority); and

(d)    stating or implying that Huatech can no longer manufacture or will no longer manufacture the existing product (Huatech No Manufacture).

112    Huatech annexed to their closing submissions detailed schedules in which it identified which Representations it alleged were conveyed by each of the Publications and each of the Customer Communications. It also annexed schedules identifying which Affiliation Factors it relied upon to establish each Representation that it alleged was conveyed in each of the Publications and Customer Communications.

Respondents

113    The respondents deny that the Representations were conveyed by the Publications and the Customer Communications. In an annexure to their closing submissions, the respondents provided a 40-page table summarising the reasons why they contend the Representations did not arise (Respondents’ Table).

114    The Respondents’ Table includes responses to the following effect, some of which would appear to be more directed at alleged falsity rather than whether the Representations were conveyed:

(a)    the representation is not expressly made nor can it be inferred from any of the language contained in the text;

(b)    the use of the words “Air-Insulated metalclad switchgear” is descriptive of the object being sold and cannot be the source of the inferences sought to be drawn by Huatech;

(c)    the use of AMS should be accepted as an industry accepted term for “air insulated metalclad switchgear”;

(d)    the references to “Gelpag” were intentional and true, Gelpag had a reputation in Australia for good design in the electrical market in general and more specifically in switchgear and do not give rise to any representation of manufacturing origin;

(e)    references to new products being exchangeable with previous products installed by Powins is only a representation offering customers a capability to extend existing infrastructure in a cost effective manner;

(f)    the manufacturer of the product is not expressly stated;

(g)    customers in the market rely on the name of the service provider and the marketed design, not the place of manufacture;

(h)    the identity of the person providing the installation and ongoing maintenance services was the relevant matter for end users;

(i)    the letters AMS were not used together, rather they are contained in a description of what the product does;

(j)    it could never be suggested by Huatech that it had any claim to the name “GELPAG”;

(k)    Gelpag GmbH created a market for itself in Australia in the period between approximately 2007 to 2016 as a designer and a company that could support and provide German engineered switchgear and circuit breakers;

(l)    the affiliation of the “Gelpag” name is a consequence of the strategy undertaken in Australia to market the “Gelpag” name rather than the name of the manufacturer, Huatech, and cannot give rise to a representation as to the origin of manufacture;

(m)    the phrase “you already have a large quantity of GELPAG switchgear installed on your site” is a direct reference to the way in which the product was sold as being German designed and a Gelpag GmbH authorised product;

(n)    it is true that as at 11 May 2020, Powins was the sole distributor of GELPAG switchgear;

(o)    the expression “identical” in the context of a tender should be limited to the fact that the product will be contained within a metalclad box with similar dimensions which has already been supplied and needs replacing as part of the tender;

(p)    the phrases “latest Gelpag MSA technology advancements” and the “new Gelpag switchgear” all indicate to the reader that here is a new product being provided and that it has no association with the manufacturer Huatech;

(q)    the document on its face does not make any references to Huatech’s products nor components;

(r)    the type test certificates for the product clearly indicate that the designer of the product is “GELPAG” and it is manufactured by an entity other than Huatech;

(s)    the tender process would eliminate any misrepresentations that might have been made because the type test certificates would need to be produced;

(t)    the respondents are marketing their products as MSA or VX5, not AMS;

(u)    the new products marketed by the respondents are designed by Gelpag AU, and improvements have been made to the old design that Gelpag AU “participated in the development of”; and

(v)    a vacuum circuit breaker described as VX5 cannot be said to have any relevance to VEP in circumstances where VX5 is described as “new” or “technologically advanced”,

(together, Respondents’ Answers).

General observations

115    The atomistic detail with which Huatech and the respondents have approached the issue of whether the Representations were conveyed in the Publications and Customer Communications is perhaps the inevitable consequence of the breadth of the matters relied upon by Huatech in advancing its ACL and passing off cases in these proceedings.

116    Before considering whether the Representations are conveyed in each of the Publications and the Customer Communications, it is necessary to make some general observations.

117    First, in both their written and oral closing submissions, the respondents had a tendency to focus on the literal truth of statements included in the Publications and Customer Communications in isolation from the balance of the documents and the overall impression otherwise conveyed by the document. This tendency was particularly pronounced in the Respondents’ Answers.

118    The Respondents’ Answers do not confront the inherent ambiguity and consequent misleading consequence of describing both the Huatech Products and the New Powins Products as GELPAG products. This ambiguity and misleading consequence cannot be justified on the basis that GELPAG had any alleged design input in the development of the Huatech Products or by the extent to which the Huatech Products were promoted in Australia as GELPAG rather than Huatech Products.

119    Any reputation that Gelpag GmbH may have had as a designer of the Huatech Products and Powins may have had as a service provider, providing installation and ongoing maintenance services, does not carry with it any necessary implication that Huatech could not have a reputation as a manufacturer of the Huatech Products, or that AMS and VEP could not have a significant reputation with respect to switchgear panels and circuit breakers. The contention that customers looked only to the reputation of the designer of the switchgear products and the service provider, not the manufacturer of the product, does not rise above conjecture. Moreover, the careful phrasing of the text giving rise to the Affiliation Factors in the Publications and the Customer Communications readily permits the drawing of an inference that the respondents recognised the relevance and significance for marketing and sales purposes of the source of the manufacturer of the AMS and VEP branded Huatech Products.

120    The extent to which Huatech chose to market the Huatech Products in Australia as GELPAG AMS and GELPAG VEP products may well have diluted Huatech’s reputation as a manufacturer of the Huatech Products but it did not diminish the reputation that the AMS and VEP marks had achieved in respect of switchgear panels and circuit breakers in Australia with customers and end users by February 2019.

121    The Respondents’ Answers fail to recognise or otherwise acknowledge the fundamentally misleading dimension to the Publications and Customer Communications. By focusing on discrete statements made in the Publications and the Customer Communications and not looking at the combined impact of the content of the Publications and the Customer Communications, the respondents have not answered the case advanced by Huatech.

122    In assessing whether the Representations were conveyed in the Publications and Consumer Communications, I have not found the Respondents’ Table or the Respondents’ Answers to be of any substantive assistance.

123    Second, I am satisfied that the only use of AMS and VEP in relation to electrical switchgear products in Australia prior to February 2019 were as brand names or types of Huatech-manufactured switchgear panels and circuit breakers. There was no probative evidence that they were used in Australia prior to February 2019 as generic descriptors for “air insulated metal switchgear” and “vacuum embedded poles”.

124    Both Dr Rossi and Mr Whitham gave evidence that, by no later than 2010, they were aware that they recognised AMS as the product name and brand for Huatech Switchgear Panels and VEP as the product name and brand for Huatech Circuit Breakers.

125    Although both Mr Sankey and Mr Muguira gave evidence in their affidavits to the effect that AMS and VEP were common industry acronyms, both ultimately accepted in cross-examination that AMS and VEP were only used for Huatech Products and neither was aware of, or able to identify, any other manufacturer that had used those terms for electrical switchgear products.

126    Mr Muguira gave the following evidence:

And, although you’ve mentioned some other products this morning that are not medium-voltage switchgear, do you accept that, at the time you made your affidavit, you were not aware of any other switchgear manufacturer using AMS as the brand of a medium-voltage switchgear panel?---Well, I – I can’t recall seeing AMS anywhere on switchgear panels other than the – the POWINS ones – the GELPAG ones. Yes.

…

When you read through Dr Rossi and Mr Whitham’s affidavits, did you see any other vacuum circuit breaker manufacturer use “VEP” as the brand of their product?---Yes. As the type, no.

As the brand. Let’s - - -?---Well, I don’t know if it’s a brand or a type. I consider it to be a type, but - - -

Well, is Huatech the only manufacturer of those that you reviewed that has used VEP as the type of their vacuum circuit breaker?---Until I got asked to do this job, the only time I’ve seen VEP is related to GELPAG on the brochure here. I’m not aware – you know, when I saw GELPAG circuit breakers – not aware where they were manufactured – I thought they were German.

127    Similarly, Mr Sankey gave the following evidence:

MR MEE: Mr Sankey, you know, don’t you, that the type that is listed on Huatech’s Type Testing reports from IPH similarly have a type commencing with the three letters AMS or VEP, don’t you?---Yes.

Yes. And that’s because AMS and VEP are Huatech’s designated name for its medium-voltage switchgear panels and vacuum circuit breakers respectively?---That’s what they’ve called them, yes.

128    The use by Powins of AMS as a brand name was illustrated in communications that Powins had with its customers in the period between February 2016 and January 2019.

129    Powins referred to the “AMS 22kV switchgear solution”, the “22Kv AMS switchgear proposal” and the “22Kv AMS power train and LV control section sheetmetal, of the Huadian/Gelpag 22Kv switchgear” in an offer made to iPower under cover of a letter dated 3 May 2016. References to “AMS switchgear” highlight the use of AMS as a brand rather than as a generic reference to an acronym for “air insulated metalclad switchgear”.

130    In an email sent to BHP Billiton (BHP) on 25 July 2018 with respect to a tender, Powins stated:

As discussed, please find attached a copy of a letter issued by Huatech confirming POWINS is an authorised distributor of the “AMS” product.

131    In response to a request by Aurecon on 28 November 2018 for advice on a brand and type suitable for a project, Powins responded by email later that day:

The product we will be offering is the Powins/Huatech AMS switchgear, commonly known in the industry as “GELPAG”. This product is used extensively across BHP, FMG and Rio Tinto sites. I have attached the AMS reference list and the Powins Rio Reference list and the operating manual for the switchgear.

132    Powins’ use of VEP as a brand name was also illustrated in communications between Powins and its customers during the period that Powins was a distributor of Huatech Circuit Breakers.

133    On 24 July 2018, PNG Power Ltd sent an email to Powins with a subject line “[EXT]; 11kV Vacuum Circuit Breaker” which included the following request:

We have two gas turbines on site. The 11kV generator circuit breakers are GELPAG Vacuum Circuit Breakers. Type VEP12T1225D11P15W.

The VCB for one the gas turbines failed to close when in service on the 11/07/18. It was tested in the isolated position and confirmed operational.

We would like to enquire for a replacement VCB to restore the gas turbine.

…

The attachments contain nameplate details of the VCB and schematic drawing of the circuit breaker.

134    Powins responded to PNG Power Ltd by providing a quotation for “the VEP circuit breaker that you have requested”.

135    On 25 July 2018, Engenuity Solutions sent an email to Powins with a subject line “Price & availability for repairs and replacement of 11kV VCB (Gelpag)” in which it stated:

We are seeking pricing & availability for parts to repair the existing VCB on site and also pricing & availability for a replacement VCB.

136    A photograph of the “nameplate info and damage” was attached to the email. The product was described in the photograph as a “GELPAG Vacuum Circuit Breaker” and the product type was recorded as “VEP12T1225D11P15W”.

137    Powins responded later that day to the Engenuity Solutions email:

The VEP circuit breaker shown looks as though it has overdriven or jammed and already had a hammer taken to the bent section. We have seen this only a few times with 3200+ units in service, as such we would not suggest fixing in the field.

138    It is readily apparent from these email exchanges that the generic term used for vacuum circuit breakers is VCB and that VEP is the particular product type or branded product being supplied by Powins during this period.

139    Third, any decision by Huatech not to promote their AMS and VEP products in Australia as Huatech products does not preclude it from objecting to other entities claiming that they were the manufacturer of those products.

140    Fourth, the branding of the New Powins Products from February 2019 as GELPAG MSA switchgear panels had an almost self-evident risk of creating confusion in the minds of end-users given the branding of the Huatech Products prior to February 2019 as GELPAG AMS switchgear panels. The association of the Gelpag brand with the Huatech Products prior to the Publications and the Customer Communications is illustrated in an email sent from Powins to RCR Tomlinson dated 20 October 2016, in response to a query about the weight of AMS12 cabinets, in which it was stated:

By way of introduction, POWINS are the Australian licensed distributor of the Gelpag Switchgear that you have at site. This Gelpag switchgear is now marketed by POWINS in [sic] as the POWINS AMS switchgear.

141    Fifth, in assessing whether the Representations were conveyed it is necessary to have regard to the documents as a whole, in particular, the juxtaposition of MSA and AMS and the juxtaposition of VEP and VX5, the prominent capitalisation of the letters AMS in describing “air insulated metal switchgear” and the letters VEP in referring to “vacuum embedded poles”, and the specific context in which references were made to “Gelpag”.

142    Sixth, the attempt to rely on the subsequent provision of type test certificates that would identify the manufacture of the New Powins Products fails to address the extent to which by that time a potential customer may have been induced by the marketing web to acquire the product.

143    Seventh, as Huatech submitted in its reply submissions on some 40 occasions, the evidence of Mr van Wijk, Mr Rauwendaal, Mr Sankey and Mr Brown sought to be relied upon by the respondents to support the contents of the Respondents’ Table and the Respondents’ Answers, was rejected, in part rejected, limited, in part limited, not read or not read in part.

144    I now turn to consider whether the Representations were conveyed to the extent alleged by Huatech, in each of the Publications and Customer Communications. In undertaking that task I have focused on the Affiliation Factors alleged to be present in each Publication and Customer Communication. As I explain above, I have considered but have not ultimately been assisted by the Respondents’ Answers and the Respondents’ Table. It is sufficient for present purposes to observe that the respondents seek to contend that none of the Representations were expressly made in, nor could they be inferred from, any of the Publications and Customer Communications.

Affiliation Factors

145    I am satisfied that the Affiliation Factors, to the extent that they are present in each of the Publications and the Customer Communications, are capable of providing a sound and coherent basis to give rise to the Representations, in the various combinations alleged by Huatech as explained above.

146    Referring to AMS, the use of MSA as an alleged acronym for “Metalclad Switchgear Air insulated” switchgear, the emphasis by the bolding of the letters A, M and S when referring to the Huatech Switchgear Panels as “Automated Metalclad Switchgear”, and the bolding and at times, underlining as well, of the letters M, S and A all served to draw a strong connection between the New Powins Switchgear Panels and the Huatech Switchgear Panels. The selection of the same letters for the branding of the New Powins Switchgear Panels was always going to give rise to an inference that the products were the same and that they were produced by the same manufacturer. The cynical bolding of the letters in their alternative combinations AMS and MSA only served to make the drawing of that inference more likely.

147    Similarly, referring to the Huatech Circuit Breakers as the previous “Vacuum Embedded Pole” circuit breakers and bolding the V, E and P and then using the brand “VX5”, particularly in the context of statements such as the “GELPAG VX5 circuit breakers and motor controllers are a direct replacement for the GELPAG VEP circuit breakers” was also likely to convey that the VX5 and VEP circuit breakers were iterations or versions of the same product and that they were produced by the same manufacturer.

148    I am satisfied that referring to the installation base of the Huatech Products as “GELPAG” products and the number of such installations in communications concerned with the New Powins Products (“Cite Customer Install Base” and “Cite Total Install Base”) conveyed that the New Powins Products are the same as the Huatech Products that had previously been installed in the Australian market. This in turn conveyed an inference that the Huatech Products, at least to the extent that they were branded or referred to as “GELPAG” products, were manufactured by Gelpag GmbH and it held the intellectual property rights to those Huatech Products sold in Australia prior to February 2019.

149    Referring to the “previous switchgear range”, the “original GELPAG switchgear released and sold in Australia from 2005-2016” or the “existing GELPAG switchgear installed from 2005” (“Cite Previous Range”) in communications in which the New Powins Products were referred to as the “New Gelpag Products” conveyed that the Huatech Products and the New Powins Products were iterations or versions of the same product and that they were produced by the same manufacturer.

150    Stating that the New Products (that is, the New Powins Products) were “identical” or “identical and interchangeable” with the “previous products” (“Identical”) unambiguously conveyed that the New Powins Products were the same as the previous products, which in context could only be a reference to the Huatech Products. No other plausible meaning can be given to the word “identical”, whether used alone or in combination with “interchangeable”.

151    Referring to the New Powins Products as the “New Gelpag Products” and then stating or implying that those products used to be sold as the GELPAG AMS, POWINS AMS or BV2 AMS (“Former Name Link”) had the effect of drawing an inescapable link between the New Powins Products and the Huatech Products. A representation that a product “used to be sold” conveys that the same product is now being sold under a different name.

152    Referring to the New Powins Products as the “New Gelpag Products” and stating or implying that these products used to be sold or serviced by Powins or its predecessor business, iPower (“Continuation of Supply”), when in truth the products that used to be sold and serviced by Powins and iPower were the Huatech Products, not the New Powins Products, irresistibly gave rise to an inference that the Huatech Products and the New Powins Products were iterations or versions of the same product and that they were produced by the same manufacturer.

153    Responding to queries from customers concerning the Huatech Products by offering a “GELPAG” new product part and asking the customer to change the part number/description in their system (“Product Switch”) would induce a customer into believing that the Huatech Products currently operated by the customer were the same products as the New Powins Products. The drawing of this inference was made more compelling by the use of phrases such as, “As discussed, the GELPAG VX5 circuit breakers and motor controllers are a direct replacement for the GELPAG VEP circuit breakers and motor controllers” in response to a request to a quotation for “the spare GELPAG VX5 circuit Breakers for the existing switchgear 2011/2013 installed”. The existing “2011/2013” switchgear could only be a reference to the Powins Switchgear Panels.

154    I am satisfied that stating or implying the Huatech Products were manufactured by Gelpag GmbH (“Gelpag Manufacture”) conveyed that the Huatech Products were manufactured by Gelpag GmbH and that it held the intellectual property rights in the Huatech Products sold in Australia prior to February 2019.

155    I am also satisfied that stating or implying that Gelpag GmbH owned the intellectual property rights in the Huatech Products (“Gelpag IP”) and the New Gelpag Products (that is the New Powins Products) were based on the design of the Huatech Products (“Upgraded Design”) conveyed that it held the intellectual property rights in the Huatech Products sold in Australia prior to February 2019.

156    Stating or implying that the respondents were “authorised” in relation to “existing” products (“R Authority”) or had the “sole” authority in relation to existing products” (“R Sole Authority”) could in context only be a reference to authority with respect to the Huatech Products installed in Australia prior to February 2019. The “existing products” were referred to as the “GELPAG Switchgear installed from 2005” and the “GELPAG Switchgear, since its introduction to the Australian Market in 2005” by the respondents in Customer Communications in March 2019.

157    Similarly, stating or implying that Huatech had no authority in relation to “existing product” (“Huatech No Authority”) and could no longer manufacture “existing product” (“Huatech No Manufacture”) in context could also only be a reference to authority with respect to, or the ability to continue to manufacture, the Huatech Products installed in Australia prior to February 2019.

2019 Announcement

158    Huatech alleges that the 2019 Announcement conveyed each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations.

159    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Cite Total Install Base, Former Name Affiliation, Continuation of Supply, Gelpag Manufacture, R Authority and R Sole Authority.

160    The 2019 Announcement described Powins as the “exclusive switchgear agent and service provider for all GELPAG switchgear in Australia” and the “only authorised OEM service and switchgear provider” for the “GELPAG air-insulated, metalclad switchgear, commonly known as GELPAG MSA (formerly known as GELPAG AMS)”. It also included an estimate that “the existing installation base” was “approximately 4000+ panels of GELPAG Switchgear, which have been installed into the Australian Market since 2005”.

161    The language of “formerly known” directly links GELPAG MSA products to GELPAG AMS products. It conveys a change of name, not that the two products are supplied and manufactured by different entities. The references to the “existing installation base” and to the “4000+ panels” that “has been installed … since 2005” again ties GELPAG MSA products (that is, the New Powins Products) to the existing installation of the 4000-plus GELPAG AMS products (that is, the Huatech Products).

162    I am therefore satisfied that the each of the Use AMS, Cite Total Install Base, Former Name Affiliation, Continuation of Supply, Gelpag Manufacture, R Authority and R Sole Authority Affiliation Factors was present in the 2019 Announcement and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations in the context of the 2019 Announcement read as a whole.

New Powins Switchgear Brochure

163    Huatech alleges that the New Powins Switchgear Brochure conveyed each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations.

164    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Emphasise M S A and Cite Previous Range.

165    The cover page of the New Powins Switchgear Brochure prominently displayed both the headings “POWINS MV SWITCHGEAR” and “MEDIUM VOLTAGE SWITCHGEAR POWINS AMS12/24/40.5”. The following page of the brochure referred to the “range of POWINS, GELPAG MSA switchgear”, “GELPAG MSA”, “2019 GELPAG VX5 vacuum circuit breaker”, and the “Product Range” is identified in a chart as “POWINS AMS 12”, “POWINS AMS 24” and “POWINS AMS 36”.

166    The brochure uses the product descriptions “POWINS AMS”, “GELPAG MSA” and “POWINS, GELPAG MSA” interchangeably and does not seek to draw any distinction between them. In doing so, it effectively conveys the impression that each is in substance the same product.

167    I am therefore satisfied that each of the Use AMS, Use MSA, Emphasise M S A and Cite Previous Range Affiliation Factors was present in the New Powins Switchgear Brochure and that the respondents thereby made each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations in the context of the New Powins Switchgear Brochure read as a whole.

March 2019 LinkedIn Post

168    Huatech alleges that the March 2019 LinkedIn Post conveyed all of the Representations.

169    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Emphasise A M S, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag Manufacture, Upgraded Design, R Authority and R Sole Authority.

170    The March 2019 LinkedIn Post referred to a “new 2019 suite of GELPAG, MSA series of Air-insulated Metalclad Switchgear” designed in Germany “as was the original GELPAG switchgear released and sold in Australia from 2005-2016” and stated:

The latest GELPAG MSA Switchgear includes technological advancements of the Vacuum Embedded Pole Circuit Breakers and Vacuum Embedded Contactors. Further all the MSA switchgear is both, retro fitable [sic] (for replacement) and extensible (for extension) to the estimated 4,000+ panels installed in the Australian Utilities, Mining and Heavy Industry sectors since its introduction in 2005.

171    The March 2019 LinkedIn Post also stated:

To further solidify the inter company relationship, POWINS Pty Ltd are now the registered owner of the subsidiary “GELPAG ELECTRICS Pty Ltd” in Australia and therefore the only authorised OEM service and switchgear provider for GELPAG Air-insulated, Metalclad Switchgear, commonly known as GELPAG MSA.

[Emphasis in original.]

172    I am therefore satisfied that each of the Use AMS, Use MSA, Emphasise A M S, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag Manufacture, Upgraded Design, R Authority and R Sole Authority Affiliation Factors was present in the March 2019 LinkedIn Post and that the respondents thereby made all of the Representations in the context of the March 2019 LinkedIn Post read as a whole.

First 2020 Advertisement

173    Huatech alleges that the First 2020 Advertisement conveyed each of the Switchgear Origin and Switchgear Same Product Representations.

174    Huatech submits that these representations were conveyed by reason of the presence of the Use AMS Affiliation Factor.

175    The First 2020 Advertisement included the following statements:

POWINS is the leading electrical turn-key solutions provider servicing the mining and heavy industry sectors via two regionally focused offices in Perth and Brisbane. POWINS’ capabilities are wide ranging and extend to the design, manufacturing and assembly of POWINS LV, MV and Custom Switchgear, integrated transformers, custom solar solutions, packaged switchrooms based on our inhouse Mech-Elect certified designs.

…

Products and Service: LV MCC Switchgear 415V & 690V – MV Switchgear Primary AMS & RMU Secondary Switchgear 3.6kV, 7.2kV, 12kV, 24kV, 36kV – Kiosks, Switchrooms, Skid Solutions, Mining Switchgear, Automation, certified Mech Elec Design, Site Services, Testing.

[Emphasis in original.]

176    I am therefore satisfied that the Use AMS Affiliation Factor was present in the First 2020 Advertisement and that the respondents thereby made each of the Switchgear Origin and Switchgear Same Product Representations in the context of the First 2020 Advertisement read as a whole.

2020 Features

177    It is convenient to deal collectively with each of the First 2020 Feature, the Second 2020 Feature and the Third 2020 Feature (together, 2020 Features). Each is relevantly identical in terms. The Third 2020 Feature appeared in the same publication as the 2020 Cover Story. Huatech does separately address the 2020 Cover Story. It considers the 2020 Cover Story and the Third 2020 Feature as a single publication for the purposes of identifying Affiliation Factors and Representations alleged to arise from Affiliation Factors.

178    Huatech alleges that each of the 2020 Features conveyed all of the Representations.

179    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use VEP, Use MSA, Cite Total Install Base, Cite Previous Range, Former Name Affiliation, Continuation of Supply, Gelpag Manufacture, Upgraded Design, R Authority and R Sole Authority.

180    Each of the 2020 Features included the following statements:

The POWINS range of MV Switchgear includes the POWINS AMS Air-Insulated Metal-Enclosed Switchgear and the POWINS MSS Solid Dielectric Switchgear.

…

POWINS are appointed as the only approved service provider for GELPAG switchgear by GELPAG Advanced Technology GmbH in Lampertheim Germany and Xiamen China.

…

The POWINS AMS and POWINS MSS switchgear are technically detailed in this article.

…

POWINS AMS12 Metal Clad Air-Insulated Switchgear Installation

POWINS MSA Air-Insulated Metal-Clad Switchgear (AMS)

Air Insulated with Withdrawable Circuit Breakers and Contactors providing the required visual isolation by withdrawing the device to the isolated position and viewing through window. Earth Switches are viewed by CCTV and also by viewing window. Typically 650mm wide.

POWINS AMS – GELPAG MSA – Air Insulated Metal-Enclosed Switchgear

…

GELPAG is the recognised world leader focusing on energy technology solutions and power distribution switchgear for the present and the future market sectors. Internationally GELPAG has 4000+ panels in service in the Australian Market up to 2020.

In 2003, GELPAG developed and type tested a type of withdrawable “Air-Insulated Metalclad Switchgear” (AMS-MSA switchgear) with options for withdrawal Vacuum Embedded Pole Circuit Breakers (VEP-VX5) and Vacuum Embedded Contatcors [sic] (VEC-FC).

Marketed in Australia as POWINS AMS12 and POWINS AMS24 MV Switchgear, 12kV and 24kV respectfully [sic].

181    AMS and MSA are used interchangeably and in close juxtaposition to each other. GELPAG is inextricably linked to both the AMS and MSA switchgears and to the 4,000+ panels in service in Australia.

182    I am therefore satisfied that each of the Use AMS, Use VEP, Use MSA, Cite Total Install Base, Cite Previous Range, Former Name Affiliation, Continuation of Supply, Gelpag Manufacture, Upgraded Design, R Authority and R Sole Authority Affiliation Factors was present in each of the 2020 Features and that the respondents thereby made all of the Representations in the context of each of the 2020 Features read as a whole.

May 2020 LinkedIn Post

183    Huatech alleges that the May 2020 LinkedIn Post conveyed each of the Switchgear Origin and Switchgear Same Product Representations.

184    Huatech submits that these representations were conveyed by reason of the presence of the Use AMS Affiliation Factor.

185    The May 2020 LinkedIn Post included the following statement:

17x Panels of POWINS AMS12 - GELPAG 11kV Switchgear rated at 2000A 40kA 95kVBIL installed in one of our unique POWINS switchroom solutions.

186    I am therefore satisfied that the Use AMS Affiliation Factor was present in the May 2020 LinkedIn Post and that the respondents thereby made each of the Switchgear Origin and Switchgear Same Product Representations in the context of the May 2020 LinkedIn Post read as a whole.

Customer Communications

BHP March 2019 emails

187    Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Ms Miranda Wojtowicz of BHP between 8 March 2019 and 19 March 2019 that was later forwarded to Mr Jarrod Friedman of BHP on 20 March 2019 (BHP March 2019 emails). The email chain commenced on 6 March 2019 as internal correspondence within BHP and initially concerned endorsing a risk assessment to permit Powins to attend site. The email exchanges between Powins and BHP are the only relevant communications for this particular Customer Communication.

188    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Cite Customer Install Base, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Product Switch, Gelpag Manufacture, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority.

189    The BHP March 2019 emails included the following statements by Mr van Wijk in response to a request from Ms Wojtowicz for Powins’ current OEM Gelpag Certificate and “who can service and maintain the Gelpag switchgear installed on site”:

[W]e have scores of recognized staff that were originally trained by GELPAG technicians and were directly responsible for the GELPAG Switchgear, since its introduction to the Australian Market in 2005.

…

To remove all confusion, as of 2019, GELPAG Advanced Technology GmbH formalised an exclusive co-operation agreement with POWINS Pty Ltd.

..

POWINS Pty Ltd, are the sole owner of the subsidiary GELPAG ELECTRIC Pty Ltd and are the only appointed OEM service and switchgear provider for GELPAG air-insulated, metalclad switchgear.

…

The announcement of this co-operation identifies POWINS Pty Ltd as the sole GELPAG authority for all OEM GELPAG switchgear sales, spare parts, periodical servicing and mandatory operational testing.

…

GELPAG Advanced Technology GmbH advise that as our local channel partner, all such enquiries should continue to be directed to POWINS Pty Ltd as their only authorised local representative.

…

POWINS are the only OEM-GELPAG Switchgear authorised service provider.

…

GELPAG Advanced Technology GmbH request that you be advised of the following regarding all GELPAG Switchgear as effective from March 2019.

1)     POWINS Pty Ltd, are the sole owner of the subsidiary GELPAG ELECTRICS Pty Ltd in Australia and are the only OEM GELPAG Switchgear representative for GELPAG air-insulated, metalclad switchgear.

2)     Regarding all existing GELPAG Switchgear installed from 2005, GELPAG Advanced Technology GmbH advise that no agreement or co-operation with Xiamen Huadian Switchgear Co. Ltd or any agent or distributor associated with that entity, neither exist or will be considered. GELPAG Advanced Technology GmbH have also advised the Xiamen Huadian Switchgear Co. Ltd company by formal letter to cease utilising all GELPAG branding of Switchgear as of end February 2019.

As such, the Xiamen Huadian Switchgear Co. Ltd can no longer manufacture the GELPAG Switchgear brand internationally and are not authorised, (nor are their appointed agent or distributors) to sell, service or support GELPAG Switchgear of estimated install base of approximately 4000+ panels in Australia.

…

POWINS … have been servicing this product since 2005.

[Emphasis in original.]

190    The email exchange between Mr van Wijk and Ms Wojtowicz was then forwarded to Mr Friedman regarding “servicing product installed product [sic] and supplying new product into the future”.

191    The BHP March 2019 emails attached the 2019 Announcement and hyperlinked the March 2019 LinkedIn Post.

192    I am therefore satisfied that each of the Cite Customer Install Base, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Product Switch, Gelpag Manufacture, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority Affiliation Factors were present in the BHP March 2019 emails and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, in the context of the emails read as a whole and the relevant attachment and hyperlink.

20 March 2019 emails

193    Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, in emails from Mr Rauwendaal to Mr Allan Fogarty and Mr Evan Goodman of Newcrest, Mr John Kouimanis and Mr Geoff Edwards of Ausenco and the Ausenco-Downer JV, Mr Adam Fisher of the AMP Control Group, and Mr David Fouhy and Mr Dominic Clark of Glencore on 20 March 2019 (together, 20 March 2019 emails).

194    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority.

195    Each of the 20 March 2019 emails included the following statements by Mr van Wijk:

GELPAG Advanced Technology GmbH request that you be advised of the following regarding all GELPAG Switchgear as effective from March 2019.

1)     POWINS Pty Ltd, are the sole owner of the subsidiary GELPAG ELECTRICS Pty Ltd in Australia and are the only OEM GELPAG Switchgear representative for GELPAG air-insulated, metalclad switchgear.

2)     Regarding all existing GELPAG Switchgear installed from 2005, GELPAG Advanced Technology GmbH advise that no agreement or co-operation with Xiamen Huadian Switchgear Co. Ltd or any agent or distributor associated with that entity, neither exist or will be considered. GELPAG Advanced Technology GmbH have also advised the Xiamen Huadian Switchgear Co. Ltd company by formal letter to cease utilising all GELPAG branding of Switchgear as of end February 2019.

As such, the Xiamen Huadian Switchgear Co. Ltd can no longer manufacture the GELPAG Switchgear brand internationally and are not authorised, (nor are their appointed agent or distributors) to sell, service or support GELPAG Switchgear of estimated install base of approximately 4000+ panels in Australia.

196    Each of the 20 March 2019 emails attached the 2019 Announcement and hyperlinked the March 2019 LinkedIn Post.

197    I am therefore satisfied that each of the Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag IP, R Authority, R Sole Authority and Huatech No Authority Affiliation Factors were present in each of the 20 March 2019 emails and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, in the context of each of the emails read as a whole and the relevant attachment and hyperlink.

20 March 2019 phone calls

198    Huatech alleges that each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations, was conveyed by Powins, or alternatively the respondents, by Mr Rauwendaal in two telephone conversations on 20 March 2019 (20 March 2019 phone calls). Mr Rauwendaal gave evidence of these conversations in his affidavit dated 3 December 2021.

199    Huatech submits that these representations were conveyed by reason of the presence of the Continuation of Supply Affiliation Factor.

200    The first of the 20 March 2019 phone calls included the following statement from Mr Rauwendaal in response to a phone call initiated by Mr Fisher who allegedly said “I was told Powins no longer had an MV switchgear product to sell”:

We [Powins] have signed up with Gelpag direct now and we still have our product. I will send you an email with further information.

201    The email referred to in the first of the 20 March 2019 phone calls was the email from Mr Rauwendaal to Mr Fisher of the AMP Control Group that was one of the 20 March 2019 emails.

202    The second of the 20 March 2019 phone calls included the following statement from Mr Rauwendaal in response to Mr Fouhy who allegedly said that “[w]e have been told that you do not have access to [MV switchgear products] anymore”:

[T]hat’s not true, let me send you an email.

…

[Mr Rauwendaal initiated the phone call to David Fouhy to ask whether he had] heard of this bad publicity that Powins cannot sell MV switchgear products.

203    The email referred to in the second of the 20 March 2019 phone calls was the email from Mr Rauwendaal to Mr Fouhy of Glencore that was one of the 20 March 2019 emails.

204    I am therefore satisfied that the Continuation of Supply Affiliation Factor was present in the 20 March 2019 phone calls and that the respondents thereby made each of the Representations, other than the Circuit Breaker Origin and Circuit Breaker Same Product Representations in the context of the phone calls read as a whole and the 20 March 2019 emails to which it related.

27 March 2019 email

205    Huatech alleges that all of the Representations were conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Mr Alan Ow of Monadelphous Electrical & Instrumentation Pty Ltd on 27 March 2019 (27 March 2019 email).

206    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use MSA, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag Manufacture, Gelpag IP, Upgraded Design, R Authority and R Sole Authority.

207    The 27 March 2019 email included the following statements in regards to “POWINS ability to execute and deliver Primary MV Switchgear”:

208    The 27 March 2019 email attached Gelpag GmbH’s announcement of Powins’ appointment, a letter from Gelpag GmbH to Huatech “officially cutting ties between the two companies”, and the POWINS MV Primary Switchgear Brochure.

209    I am therefore satisfied that each of the Use MSA, Cite Total Install Base, Cite Previous Range, Continuation of Supply, Gelpag Manufacture, Gelpag IP, Upgraded Design, R Authority and R Sole Authority Affiliation Factors was present in the 27 March 2019 email and that the respondents thereby made all of the Representations in the context of the email read as a whole and the relevant attachments.

1 April 2019 email

210    Huatech alleges that all of the Representations were conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Mr Ow on 1 April 2019 (1 April 2019 email). This email was the last email in an email chain that included the 27 March 2019 email.

211    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS and Use MSA.

212    The 1 April 2019 email included the following statements made by Mr van Wijk continuing the conversation regarding the ability of Powins to execute and deliver what was referred to as Primary MV Switchgear, in addition to the statements made in the 27 March 2019 email:

Mark and I had a very good multiple conversations/meetings with BHP on Thursday last week, specifically with Spiros C. I have advised him as per our conversation that POWINS would be in a position to supply our POWINS AMS (GELPAG MSA) product as required moving forward.

…

POWINS and GELPAG (Germany) give full commitment to any statements made by myself with regards to the continuation of supply of product.

…

I can advise we have passed over the weekend the type testing done on an Air-Insulated Metal Clad Switchboard for an Electrical Supply Authority at IPH Germany Test Laboratory for 12kV 40kA.

213    I am therefore satisfied that each of the Use AMS and Use MSA Affiliation Factors was present in the 1 April 2019 email and that the respondents thereby made all of the Representations in the context of the email chain read as a whole.

FMGL 2019 emails

214    Huatech alleges that each of the Switchgear Origin and Switchgear Same Product Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Mr Cobus Strauss of Fortescue Metal Group Ltd (FMGL) between 26 June 2019 and 4 July 2019 (FMGL 2019 emails).

215    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA and Continuation of Supply.

216    The FMGL 2019 emails included the following statements by Mr van Wijk to Mr Strauss regarding arranging a factory visit of the Gelpag facility to “touch and feel our existing POWINS AMS and POWINS MSS (new Solid Insulated Switchgear Product) as well”:

POWINS / GELPAG have now completed all our type testing for the Air Insulated Switchgear.

…

The email lists “POWINS AMS (Air-Insulated Metalclad Switchgear) – GELPAG MSA” products among others that Powins intended to showcase to FMGL.

217    I am therefore satisfied that each of the Use AMS, Use MSA and Continuation of Supply Affiliation Factors was present in the FMGL 2019 emails and that Powins thereby made each of the Switchgear Origin and Switchgear Same Product Representations in the context of the emails read as a whole.

BHP 7 August 2019 email

218    Huatech alleges that each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr van Wijk and Mr Duane Elliott of BHP on 7 August 2019 (BHP 7 August 2019 email).

219    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Cite Customer Install Base, Former Name Affiliation and Continuation of Supply.

220    The BHP 7 August 2019 email included the following statements by Mr van Wijk:

All currently employed POWINS staff … have had a long term affiliation with GELPAG since 2005 and were instrumental in releasing the product to the Australian market, through our then employer i.Power Solutions (Lend Lease).

…

POWINS Pty Ltd was established in December 2014 and during this period have delivered GELPAG product to the market as the POWINS AMS 12/24/40.

…

POWINS has supplied more than 400 tiers to the market, mostly to tier 1 clients such as yourselves both on the east and west coast of Australia.

…

This [partnership between Powins and Gelpag GmbH] is not only to strengthen the supply chain for the POWINS AMS switchgear range but to additionally launch the extended range of GELPAG MSS Switchgear.

…

POWINS are committed to support BHP for current installed and future GELPAG Switchgear.

…

All of our experts were involved in the design of the ‘Australian version’ of the GELPAG switchgear since 2005.

…

The current range of POWINS AMS switchgear is 100% retrofit able with your installed product base.

…

Since early 2019 GELPAG have been working with POWINS to retest their MSA Product in their new manufacturing facility.

221    The BHP 7 August 2019 email attached the 2019 Announcement and a letter from Gelpag GmbH to Huatech. The March 2019 LinkedIn Post was also hyperlinked in the BHP 7 August 2019 email.

222    I am therefore satisfied that each of the Use AMS, Use MSA, Cite Customer Install Base, Former Name Affiliation and Continuation of Supply factors was present in the BHP 7 August 2019 email and that the respondents thereby made each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations in the context of the email read as a whole and the relevant attachments and the hyperlink.

Tetra Tech 22 August 2019 email

223    Huatech alleges that each of the Switchgear Origin and Switchgear Same Product Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr Mark Brown and Mr Graham Clarke of Tetra Tech on 22 August 2019 (Tetra Tech 22 August 2019 email).

224    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS and Use MSA.

225    The Tetra Tech 22 August 2019 email included the following statement by Mr Brown:

I’m not actually sure what specific information you are looking for? I have attached the brochure on the new GELPG MSA range of switchgear and included the install base for the Powins AMS range.

226    The referenced brochure is the New Powins Switchgear Brochure.

227    The attached “install base for the Powins AMS range” lists recent projects, detailing the project name, project description, approximate contract value, project schedule, site/office location, major subcontractors/products and whether the project was a joint venture. Most relevantly, the project schedule column lists various start and completion dates for numerous projects, ranging from February 2015 to May 2019. Equally relevant, the major subcontractors/products column lists the products used in the projects, including “POWINS – AMS 12kV Switchgear”, “POWINS – MV Switchgear” and “POWINS – AMS 22” among others.

228    I am therefore satisfied that each of the Use AMS and Use MSA Affiliation Factors was present in the Tetra Tech 22 August 2019 email and that the respondents thereby made each of the Switchgear Origin and Switchgear Same Product Representations in the Tetra Tech 22 August 2019 in the context of the email read as a whole and the attached “install base for the Powins AMS range” list.

Essential Energy 29 August 2019 email

229    Huatech alleges that each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr Rauwendaal and Mr Majid Tavakoli of Essential Energy on 29 August 2019 (Essential Energy 29 August 2019 email). The email chain commenced on 1 August 2019 as internal correspondence within Essential Energy and concerned a quotation for “four cyclos and associated springs for CBs in a Lend lease Ipower Switchboard”.

230    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Cite Total Install Base, Former Name Affiliation, Continuation of Supply, Product Switch, R Authority and R Sole Authority.

231    The Essential Energy 29 August 2019 email included the following statements by Mr Rauwendaal:

Please note that Lend Lease i.Power Solutions ae [sic] no longer, and LL do refer to POWINS to support the installed switchgear base.

Most of the POWINS team were at i.Power Solutions for all of its existence and POWINS is now the exclusive agent in Australia.

…

I am your best contact at POWINS moving forward for all the GELPAG switchgear parts service and new equipment (BV2 / AMS as we marketed it then).

232    I am therefore satisfied that each of the Use AMS, Cite Total Install Base, Former Name Affiliation, Continuation of Supply, Product Switch, R Authority and R Sole Authority Affiliation Factors was present in the Essential Energy 29 August 2019 email and that the respondents thereby made each of the Switchgear Origin, Switchgear Same Product and Gelpag Representations in the context of the email read as a whole.

KPS 10 September 2019 email

233    Huatech alleges that each of the Switchgear Same Product and Circuit Breaker Same Product Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between Mr Brown and both Mr Roy Pascoe and Mr Tom Brown of KPS on 10 September 2019 (KPS 10 September 2019 email).

234    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Cite Customer Install Base, Cite Total Install Base, Continuation of Supply and Upgraded Design.

235    The KPS 10 September 2019 email included the following statements by Mr Mark Brown to both Mr Pascoe and Mr Tom Brown discussing the “GELPAG MSA (Air insulated metalclad switchgear)”:

As discussed the GELPAG MSA switchgear is completely interchangeable with the older GELPAG AMS product and the HUATECH product range. The MSA panels bolt on and the VCB are interchangeable with the older products.

Attached is the GELPAG MSA product catalogue which is the equivalent to your existing products you have in service at KPS.

…

[W]hat I can advise is the VX5 VCB is the next generation withdrawable VCB’s

236    I am therefore satisfied that each of the Use AMS, Use MSA, Cite Customer Install Base, Cite Total Install Base, Continuation of Supply and Upgraded Design Affiliation Factors was present in the KPS 10 September 2019 email and that the respondents thereby made each of the Switchgear Same Product and Circuit Breaker Same Product Representations in the context of the email read as a whole.

OFI Group November 2019 emails

237    Huatech alleges that all of the Representations were conveyed by Powins, or alternatively the respondents, in the email exchange between Mr Scott Wardale of Powins and Mr Atif Sharif of OFI Group between 14 November 2019 and 15 November 2019 (OFI Group November 2019 emails).

238    Huatech submits that these Representations were conveyed by reason of the presence of the following Affiliation Factors: Use AMS, Use MSA, Cite Total Install Base, Cite Previous Range, Identical, Continuation of Supply, Gelpag Manufacture, Gelpag IP and Upgraded Design.

239    The OFI Group November 2019 emails included the following statements by Mr Wardale:

[O]ur General Manager … has had multiple meetings with FMG about the continuation of supply, the origins and interchangeability of our Gelpag product.

…

Gelpag as the originator of the GELPAG AMS switchgear design commencing supply in 2006 internationally, the 2019 suite of GELPAG MSA technology switchgear series, has been enhanced by use of the new epoxy materials Gelpag has developed. The enhanced switchgear design continues to be both, retro fitable (for replacement) and extensible (for extension) to the estimated 4,000+ panels installed in the Australian Mining and Heavy Industry sectors since its introduction in 2005.

The latest GELPAG MSA technological advancements of Vacuum Embedded Pole Circuit Breakers and Vacuum Embedded Contractors is included in the new GELPAG switchgear range.

All the MSA switchgear and supporting withdrawable devices offered for this project have been designed, manufactured and type tested … by GELPAG Advanced Technology GmbH.

240    Mr Wardale also confirmed to Dr Sharif that the use of Gelpag switchgear was the same switchgear as was previously offered for the “HOP001/3/7/8” and that the type test certificates and other compliance are exactly the same. The type test certificates were also attached.

241    The OFI Group November 2019 emails attached the 2019 Announcement and a letter to Huatech.

242    I am therefore satisfied that each of the Use AMS, Use MSA, Cite Total Install Base, Cite Previous Range, Identical, Continuation of Supply, Gelpag Manufacture, Gelpag IP and Upgraded Design Affiliation Factors was present in the OFI Group November 2019 emails and that the respondents thereby made all of the Representations in the context of the emails read as a whole and the relevant attachments.

iPower 2019 emails

243    Huatech alleges that each of the Circuit Breaker Origin, Circuit Breaker Same Product and Gelpag Representations was conveyed by Powins, or alternatively the respondents, in the email exchange between both Mr Rauwendaal and Mr Stuart Kemp of Powins and Ms Anna Bottrell of iPower between 15 August 2019 and 27 November 2019 (iPower 2019 emails).

244    Huatech submits that these representations were conveyed by reason of the presence of the following Affiliation Factors: Use VEP, Emphasise V E P and Product Switch.

245    The iPower 2019 emails included the following statements by both Mr Rauwendaal and Mr Kemp:

The GELPAG vacuum circuit breaker with vacuum embedded pole has been recently updated. Please update part number in your system to reflect: VX512T0625D11F.

Simple change of Pre-fix from VEP (Vacuum Embedded Pole) to VX5 which is actual product GELPAG code name.

…

We have received the 2 circuit breaker [sic] into our workshop and have completed the prototyping of the new key interlock mounting brackets. As you can see from the attached photo, the location is different to the previous Gelpag generation CB

[Emphasis in original.]

246    I am therefore satisfied that each of the Use VEP, Emphasise V E P and Product Switch Affiliation Factors was present in the iPower 2019 emails and the respondents thereby made each of the Circuit Breaker Origin, Circuit Breaker Same Product and Gelpag Representations in the context of the emails read as a whole.