Granitigard Pty Ltd v Termicide Pest Control Pty Ltd

In the case of Granitigard Pty Ltd v Termicide Pest Control Pty Ltd, the dispute between the parties centred around allegations of misleading or deceptive conduct under Australian trade practices law. Specifically, Granitigard claimed that Termicide had made false representations about the efficacy and testing of Termicide's termite barrier system, Termiglass, by displaying a CSIRO appraisal on its website. The Federal Court of Australia was tasked with determining whether Termicide had adopted the CSIRO appraisal as its own through the display of the document on its website.

The primary legal issues the court needed to address were whether Termicide had adopted the CSIRO appraisal by merely displaying it on its website and whether the terms "appraised," "assessed," and "inspected" used in the CSIRO document should be understood as synonymous. The court also had to consider whether it could draw a Jones v Dunkel inference regarding evidence not addressed by the trial judge and whether issues not explicitly pleaded at first instance could be relied upon during the appeal. Lastly, the court assessed whether the trial judge's costs order should be reviewed.

The court found that Termicide did not adopt the CSIRO appraisal as its own by merely displaying it on its website. The court held that the continued reproduction and linking to the CSIRO appraisal, along with the presence of the CSIRO Appraisals logo, did not imply adoption. Instead, these actions invited readers to form their own opinions on the worth of Termicide's claims regarding Termiglass. The court also clarified that the terms "appraised," "assessed," and "inspected" were not interchangeable and must be understood in their contextual meaning. The court concluded that neither Termicide nor the CSIRO had represented that Termiglass or the Termiglass Termite Barrier System had been "tested" by the CSIRO.

Regarding the drawing of a Jones v Dunkel inference, the court held that such an inference does not necessarily establish the contrary position. Additionally, the court ruled that it should not be required to conduct an inquiry as to whether issues not explicitly pleaded were raised at first instance. Finally, the court found no grounds to review the trial judge's costs order as there was no mistake of fact or error of principle.

The appeal was dismissed, and Termicide was ordered to pay Granitigard's costs of the appeal on a party and party basis.