ACI Australia v Union Kraft Pty Ltd

[1990] FCA 117

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JUDGMENT No ........ ........ . ........ ..,I,

IN THE FEDERAL COURT OF AUSTRALIA	1	>
QUEENSLAND DISTRICT REGISTRY	1	QLD 10 of 1990
GENERAL DIVISION	)

BETWEEN: ACI AUSTRALIA LIMITED

Applicant

AND: UNION KRAFT PTY LTD

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J .

DATE OF ORDER:	4 APRIL 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. the respondent's application to discharge or vary
the injunction granted on 28 February 1990 is
dismissed;

2.    the costs of this application, including reserved costs, will be the costs of the applicant in any event.

NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
I N THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1  QLD 10 of 1990
GENERAL DIVISION	1

BETWEEN:  A C I AUSTRALIA LIMITED

Appl icant

AND:  UNION KRAFT PTY LTD

Respondent

PINCUS J . 4 APRIL 1990

REASONS FOR JUDGMENT

On 28 February 1990, I made an order r e s t r a i n i n g t h e

respondent u n t i l t r i a l o r f u r t h e r e a r l i e r o rde r , from rep re sen t ing

t h a t i t s products Bar-Foil 533, 536 and 539, o r any of them, a r e

s u i t a b l e f o r use i n a r e a s where a f lammabi l i ty index n o t g r e a t e r

than	5	i s	required.	I	a l s o made	an	order	s i m i l a r l y	r e s t r a i n i n g
the	respondent	from	s e l l i n g ,	o f f e r i n g	f o r	s a l e	o r	supplying	f o r

t he purpose of s a l e Bar-Foil 533, 536 and 539. A s explained a t

p.11 of t he reasons I gave f o r t h a t o rde r , t he ope ra t ion of t he

i n junc t ion was suspended f o r a month. I s a i d :

"The purpose of doing so is to allow for the

possibility that, perhaps by further investigation

or modification of i t s mode of manufacture, the

respondent's sarking may be got to sat isfy

independent testing."

The respondent has app l i ed f o r an order t h a t t h e

i n t e r l o c u t o r y i n j u n c t i o n I gave on 28 February 1990 be terminated

or varied. The reason is, in short, that the sarking is now said

to satisfy independent testing.

These reasons are supplementary to those of 28 February

1990, which I will not here summarise.

As before, two sets of independent tests were proffered, one of which (NBTC) gave results higher than the other (AWTA). It seems fairly obvious that this difference is due to the method of testing and not to variations in the quality of the material. It may be that the problem is a difference of opinion between the testers as to the height of the flame or some error, on the part of one or the other, in testing technique. Previously, as I have pointed out, the NBTC tests gave results about 50% higher than the

AWTA tests. The margin in the latest batch of tests is about 36%. Apart from the differences just referred to - between the results obtained on identical material at AWTA and at NBTC - the evidence shows differences in the results obtained by AWTA testing the same material. Mr C.J. Townsend has made an affidavit

suggesting that the differences might be due to the fact that only	three samples instead of six were used, but that seems to me
improbable. I am as unimpressed with that explanation as I am with the tone of Mr Townsendvs affidavit filed on 3 April; that affidavit suggests that Mr Townsend had perhaps come to repent of his collaboration with the respondent.
On the AWTA retest of the material previously tested last September, an average index of 7 came down to 5.5; the December material came down from 7 to 6.3, on the average, but the recent tests broduced the same average results: 5.5.
One obvious explanation of this pattern is that older material is less flammable because of evaporation of flammable components, but there is no information before me as to whether or not retesting material, after a period of several months, consistently produces lower results. Indeed, more generally, there is little worthwhile scientific information before me, and one may be pardoned for expressing a little surprise at that. In particular, it is surprising that more effort was not expended on ascertaining whether, in ordinary practical usage of sarking, material which does not meet the standard presents a significant fire risk. It seems clear that the tests done in 1974 did not attempt to determine the fire risk associated with different indexes in conditions likely to be met in practice. The suggestion those tests were of "real life behaviour" is incorrect; that remark applies particularly to the tests of material hanging vertically.

However, I have formed the view that neither the flimsy

experimental backing of the standard, provided by the 1974 tests,
nor the lack of any worthwhile evidence in support of the

proposition that the respondent's sarking constitutes a

significant risk to its users, nor the variations between the test

results obtained on the same material, can save the respondent.

As the passage quoted from my reasons of 28 February indicates, I

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then had in mind the possibility that there might be investigation or modification of the respondent's mode of manufa'cture. That

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seems not to have occurred. According to the eviden,ce,, the only change made has that a different mixer blade was fitted and Mr Trodden did not attach significance to that.

I think that, apart from the variation in results due to either vagueness of the standard, or varying subjective of judgments of the testers, there is probably a genuine difference of a significant kind between different batches of the respondent's material. Batches supplied by the respondent initially tested at an average index of 3.14 and, when recently retested, averaged 3 (AWTA). On the other hand, the respondent's

sarking, selected on behalf of the applicant, initially tested at an average of 5.5 and then retested at 5.5. The difference (of . . about 75%) makes it seem likely that the respondent's material is not reasonably uniform, as to flammability index. That proposition gets some slight additional support from the point made by Mr Chesterman Q.C., namely that in the recent tests both NBTC and AWTA got good results for the respondent's 533 sarking, but consistently failed the 539.

It is my opinion, as I have explained previously, that the statement that the respondent's sarking is suitable for use where a flammability index not greater than 5 is required is misleading "if the material does not, at least ordinarily if not always, meet the requirement" (p.3 of the reasons of 28 February 1990). The reason for that view is that many people would assume that the statement about suitability for use implied that a consumer could have confidence that the sarking complied with the standard. The facts appear to be that it sometimes complies and

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5.

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sometimes it does not, although when it does not comply it tends

to go very close (at least on the AWTA results). That

circumstance does not appear to me sufficient to alter the order I	, .
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previously made. It was said by Mr Boulton, who conducted his rather difficult case capably, that I should consider imposing a
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conditioh requiring periodic testing, but it does not appear to me	I
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that that is a practicable course.	. .
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The respondent's application to discharge or vary the injunction I granted on 28 February 1990 will be dismissed and the	:
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costs of that application, including reserved costs, will be the	i
costs of the applicant, ACI Australia Limited, in any event.	c .
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I certify that this and the four

preceding pages are a true copyeof the
reasons for judgment herein of His Honour

Mr. Justice Pincus.