FEDERAL COURT OF AUSTRALIA
Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340
File number: VID 528 of 2019 Judgment of: SNADEN J Date of judgment: 14 November 2022 Catchwords: CONSUMER LAW – misleading and deceptive conduct –representations by market participants about the qualities or characteristics of one participant’s product – applicant alleged contraventions of ss 18 and 29(1)(g) of the Australian Consumer Law (“ACL”) – cross-claim by respondent – where respondent alleged contraventions of ss 18, 29(1)(a) and (g), and 33 of the ACL – whether counter-marketing campaign was misleading, deceptive or false – elements of misleading and deceptive conduct – interpretation of the National Construction Code (“NCC”) – whether representations to the market were misleading, deceptive or false – consideration of relevant audience – whether representations made with adequate scientific foundation – whether declaratory relief warranted – whether injunctive relief should be granted – application dismissed and cross-claim upheld
TORTS – tort of injurious falsehood – elements of tort – whether representations made by the respondent were false – whether representations were attended by malice – where representations reflected views that were genuinely held by the respondent
EVIDENCE – where applicant objected to admissibility of expert witness evidence – where objection based on alleged lack of independence of expert witness – where expert witness was previously commissioned to produce a report by the respondent – where expert witness’s report was used to justify alleged representations – finding that evidence admissible – whether general discretion to exclude evidence under s 135 of the Evidence Act 1995 enlivened – finding that evidence held probative value
Legislation: Competition and Consumer Act 2010 (Cth) – sch 2, ss 18, 29, 33, 232
Evidence Act 1995 (Cth) – ss 76, 79, 135
Federal Court of Australia Act 1976 (Cth) – s 21
Building Act 1993 (Vic)
Federal Court Rules 2011 (Cth) – pt 23
Building Regulations 2018 (Vic)
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564
Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309
Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682
Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1
Australian Competition and Consumer Commission v H J Heinz Company Australia Ltd (2018) 363 ALR 136
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96
Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (2021) 158 ACSR 31
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378
Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd [2020] FCA 1340
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435
Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374
Guy v Crown Melbourne Ltd [2017] FCA 1104
Ibeneweka v Egbuna [1964] 1 WLR 219
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
National Roads and Motorists’ Association Ltd v Construction, Forestry, Mining and Energy Union (2019) 291 IR 28
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622
Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS631436T [2021] VSCA 72
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
Warramunda Village Inc v Pryde (2001) 105 FCR 437
Yorke v Lucas (1985) 158 CLR 661
Justice Robert French, ‘Declarations – Homer Simpson’s remedy – is there anything they cannot do?’ [2007] FedJSchol 24
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 396 Date of last submissions: 6 September 2021 (Applicant, Cross-Respondent)
10 September 2021 (Respondent, Cross-Claimant)Date of hearing: 28 June 2021 – 2 July 2021 and 13 July 2021 Counsel for the Applicant / Cross-Respondent: Mr T J Walker QC with Mr R J Harris Solicitor for the Applicant / Cross-Respondent: Mills Oakley Counsel for the Respondent / Cross-Claimant: Mr C M Archibald QC with Mr L Connolly and Mr A Terzic Solicitor for the Respondent / Cross-Claimant: Herbert Smith Freehills ORDERS
VID 528 of 2019 BETWEEN: PIRMAX PTY LTD
Applicant
AND: KINGSPAN INSULATION PTY LTD
Respondent
AND BETWEEN: KINGSPAN INSULATION PTY LTD
Cross-Claimant
AND: PIRMAX PTY LTD
Cross-Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
14 NOVEMBER 2022
THE COURT ORDERS THAT:
1.On the originating application dated 17 May 2019, there be judgment for the respondent.
2.The originating application dated 17 May 2019 be dismissed.
3.On the notice of cross-claim dated 7 June 2019, there be judgment for the cross‑claimant.
4.Within 14 days of the date of these orders, the parties must confer and, if possible, agree upon and submit to the chambers of Justice Snaden a minute of orders for final relief (including costs) that reflect the court’s reasons for judgment herein.
5.In the event that no such agreement is possible, the parties each prepare and submit, within 21 days of these orders, a minute of orders for final relief (including costs) that they propose in reflection of the court’s reasons for judgment herein, together with brief written submissions (of no more than three pages) in support thereof.
6.Further orders for final relief (including costs, as appropriate) be made on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PART 1: OVERVIEW
[1]
PART 2: BUILDING INDUSTRY REGULATIONS
[7]
2.1 The National Construction Code
[7]
2.2 NCC 2015
[13]
2.3 AS ISO 9705
[23]
2.4 NCC 2016
[27]
2.5 AS 5637.1
[31]
2.6 The NCC 2016 “Transitional Provision”
[36]
2.7 NCC 2019
[38]
PART 3: BACKGROUND AND EVIDENCE
[40]
PART 4: DR BARNETT’S EVIDENCE
[51]
PART 5: THE HR PANEL PRODUCT
[61]
5.1 Pirmax enters the market for the supply of rigid foam insulation products
[61]
5.2 The HR Panel Product reports
[66]
5.2.1 The Pirmax Exova Report
[69]
5.2.2 The Acronem Report
[74]
5.2.3 The Ignis Report
[83]
5.2.4 The Ignis Certificates
[87]
5.3 Marketing the HR Panel Product
[93]
5.4 Kingspan’s concerns about Pirmax’s performance claims
[99]
5.5 Kingspan’s counter-marketing efforts
[111]
5.6 Kingspan’s misleading or deceptive conduct allegation
[125]
5.7 Kingspan testing alerts
[129]
5.8 Kingspan’s testing of the HR Panel Product
[134]
5.8.1 The Kingspan Exova Report
[136]
5.8.2 The Barnett Report
[142]
5.9 Project Shield and Sword
[149]
PART 6: THE ISO3 PRODUCT
[166]
6.1 The ISO3 Product reports
[167]
6.1.1 The Pirmax Exova ISO3 Report
[169]
6.2 Marketing the ISO3 Product
[171]
6.3 Kingspan’s concerns about ISO3 performance claims
[174]
6.4 Kingspan’s testing of the ISO3 Product
[175]
6.4.1 The Kingspan Exova ISO3 Report
[177]
6.4.2 The Barnett ISO3 Report
[179]
PART 7: THE AUSTRALIAN CONSUMER LAW CLAIMS
[180]
7.1 Legislative scheme
[180]
7.2 Relevant legal principles
[184]
7.3 Pirmax’s ACL claims
[192]
7.3.1 Alleged misleading representations made by Kingspan
[192]
7.3.1.1 Representation that Pirmax had no basis to claim group 1 classification
[196]
7.3.1.2 Representation that the HR Panel Product was not compliant with relevant standards
[201]
7.3.1.3 Representation that the HR Panel Product was not fit for purpose
[203]
7.3.1.4 Representation that the HR Panel Product is unsafe and dangerous
[205]
7.3.1.5 Representation about the independence of Dr Barnett
[207]
7.3.1.6 Representation that the Kingspan Exova Report was an AS ISO 9705 test report
[210]
7.3.2 Kingspan’s defence to Pirmax’s claims
[214]
7.3.3 Consideration
[227]
7.3.3.1 Did Kingspan make the representations alleged?
[227]
7.3.3.2 Were Kingspan’s representations false, misleading, or deceptive?
[236]
7.3.3.3 Some other matters
[276]
7.3.4 Conclusion on Pirmax’s ACL claims
[280]
7.4 Kingspan’s ACL claims
[281]
7.4.1 Alleged misleading representations made by Pirmax—HR Panel Product
[281]
7.4.2 Pirmax’s defence—HR Panel Product
[285]
7.4.3 Consideration of HR Panel Product representations
[293]
7.4.3.1 Did Pirmax make the representations alleged?
[293]
7.4.3.2 Were the representations false, misleading or deceptive?
[303]
7.4.3.3 Further observations on the evidence
[313]
7.4.4 Alleged misleading representations made by Pirmax—ISO3 Product
[323]
7.4.5 Pirmax defence—ISO3 Product
[326]
7.4.6 Consideration
[332]
7.4.6.1 Did Pirmax make the representations alleged?
[332]
7.4.6.2 Were the representations false, misleading or deceptive?
[339]
7.4.7 Conclusion on Kingspan’s ACL claims
[346]
PART 8: PIRMAX’S INJURIOUS FALSEHOOD CLAIM
[350]
8.1 Summary
[350]
8.2 Principles to be applied
[351]
8.3 Alleged injurious falsehoods
[354]
8.4 Kingspan’s defence
[358]
8.5 Consideration
[362]
PART 9: RELIEF
[372]
9.1 Preliminary observations
[376]
9.2 Injunctive relief
[381]
9.3 Declaratory relief
[386]
9.4 Relief to be granted
[394]
SNADEN J:
PART 1: OVERVIEW
In early 2016, the applicant and cross-respondent (“Pirmax”) entered the market for the manufacture and supply of rigid foam insulation products. Since that time, it relevantly manufactured two modified polyisocyanurate rigid thermal insulation products, to which I shall refer as the “HR Panel Product” (which it began manufacturing in or around 2016) and the “ISO3 Product” (which it began manufacturing in or around 2019).
The respondent and cross-claimant (“Kingspan”) is the Australian subsidiary of Kingspan Group PLC, a large manufacturer of building products headquartered in Ireland. Kingspan has been manufacturing polyisocyanurate rigid thermal insulation products for over 40 years. It competes with Pirmax in the market for the supply of such products in Australia.
Pirmax brings the present proceeding alleging that Kingspan engaged in an unlawful campaign aimed at damaging Pirmax’s business by means of untrue, public representations about the HR Panel Product. In particular, it alleges that Kingspan made untrue representations to the effect that the HR Panel Product failed to comply with certain requirements contained in the National Construction Code (the “NCC”) concerning fire hazard properties and was, for that reason, unsafe (amongst other things). By certain elements of that campaign, Pirmax alleges that Kingspan (1) engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth); the “ACL”) and (2) committed the tort of injurious falsehood.
By its cross-claim, Kingspan alleges that the marketing and technical materials that Pirmax produced and publicly disseminated contained untrue representations that overstated the extent to which the HR Panel Product and the ISO3 Product, respectively, complied with those same requirements in the NCC concerning fire hazard properties. The making of those representations, Kingspan alleges, similarly amounted to Pirmax engaging in misleading or deceptive conduct in contravention of the ACL.
Pirmax moves the court for declarations, injunctions, damages, interest and costs. On the first day of the trial, Kingspan informed the court that it would no longer pursue any claim for damages. It seeks only declarations, injunctions, and costs by way of relief in respect of its cross-claim.
For the reasons that follow, Pirmax’s application must be dismissed and Kingspan’s cross-claim must succeed. Orders will be made accordingly.
PART 2: BUILDING INDUSTRY REGULATIONS
2.1 The National Construction Code
The proceeding turns largely on certain requirements of the NCC relating to the fire hazard properties of wall and ceiling linings. It is necessary to trace the regulatory origins of the NCC and its relevant provisions in some detail.
The introduction to the current iteration of the NCC, the NCC 2019, provides a helpful overview of the NCC and its scope. It states as follows:
The NCC is Australia’s primary set of technical design and construction provisions for buildings. As a performance-based code, it sets the minimum required level for the safety, health, amenity, accessibility and sustainability of certain buildings. It primarily applies to the design and construction of new buildings, and plumbing and drainage systems in new and existing buildings. In some cases it may also apply to structures associated with buildings and new building work or new plumbing and drainage work in existing buildings.
The Australian Building Codes Board (ABCB), on behalf of the Australian Government and each State and Territory government, produces and maintains the NCC. When determining the content of the NCC, the ABCB seeks to—
•ensure requirements have a rigorously tested rationale; and
•effectively and proportionally address applicable issues; and
•create benefits to society that outweigh costs; and
•consider non-regulatory alternatives; and
•consider the competitive effects of regulation; and
•not be unnecessarily restrictive.
The primary users of the NCC include architects, builders, plumbers, building surveyors, hydraulic consultants, engineers and other building and plumbing related professions and trades.
The NCC is published in three volumes: volumes 1 and 2 contain the Building Code of Australia (the “BCA”), while volume 3 contains the Plumbing Code of Australia. The BCA assumes statutory force in each state and territory, albeit in different ways. In Victoria, reg 10 of the Building Regulations 2018 (Vic) (which is made under the Building Act 1993 (Vic)), provides that “[t]he BCA is adopted by and forms part of these Regulations as modified by these Regulations”.
The BCA is, then, to be construed according to ordinary principles; albeit with recognition that it is a technical document used by building practitioners on a day-to-day basis and, as such, is not drafted in the same way as an act of parliament: Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS631436T [2021] VSCA 72, [208] (Beach, Osborn JJA and Stynes AJA).
The NCC is typically revised every three years following a process of industry consultation and review (although, as will shortly become apparent, that process sometimes occurs more frequently). Principally, the dispute around which this proceeding revolves arises out of changes to the provisions concerning the testing of fire hazard properties from the 2015 version of the NCC (which took effect from 1 May 2015) to the 2016 version of the NCC (which took effect from 1 May 2016). Certain provisions of the NCC 2019 (which took effect from 1 May 2019) concerning fire hazard properties are also relevant to a claim made by Kingspan in respect of the ISO3 Product.
The fire resistance provisions are contained in volume 1 of the NCC, which is also volume 1 of the BCA. As volumes 1 and 2 of the NCC are also volumes 1 and 2 of the BCA, the parties in their written submissions and during the trial referred variously to “the NCC”, “the BCA”, “the NCC/BCA”, or simply “the Code”. In this judgment I shall refer to the “NCC” (or to “NCC 2015”, “NCC 2016”, and “NCC 2019”, as applicable), although it is upon only a small number of provisions in volume one of each instrument that the matter turns. Capitalised terms not otherwise defined in this part adopt the meaning as defined in the relevant NCC.
2.2 NCC 2015
Section A of volume 1 of NCC 2015 was entitled “general provisions”. It provided an overview of the NCC and its application, as well as the rules and instructions for interpreting and complying with it. Of present importance, it mapped out the various methods by which compliance with its requirements might be demonstrated. Those compliance pathways were introduced by Part A0 of NCC 2015, which provided, relevantly:
A0.4 Compliance with the BCA
A Building Solution will comply with the BCA if it satisfies the Performance Requirements.
A0.5 Meeting the Performance Requirements
Compliance with the Performance Requirements can only be achieved by—
(a) complying with the Deemed-to-Satisfy Provisions; or
(b) formulating an Alternative Solution which—
(i) complies with the Performance Requirements; or
(ii)is shown to be at least equivalent to the Deemed-to-Satisfy Provisions; or
(c) a combination of (a) and (b).
...
A0.7 Deemed-to-Satisfy Provisions
A Building Solution which complies with the Deemed-to-Satisfy Provisions is deemed to comply with the Performance Requirements.
…
A0.9 Assessment Methods
The following Assessment Methods, or any combination of them, can be used to determine that a Building Solution complies with the Performance Requirements:
(a)Evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision as described in A2.2.
(b) Verification Methods such as—
(i) the Verifications Methods in the BCA; or
(ii)such other Verification Methods as the appropriate authority accepts for determining compliance with the Performance Requirements.
(c) Comparison with the Deemed-to-Satisfy Provisions.
(d) Expert Judgement.
The present matter concerns only the Deemed-to-Satisfy Provisions of the NCC (which is to say that it does not concern the formulation of an “Alternative Solution”).
Part A2 of NCC 2015 relevantly provided as follows:
A2.2 Evidence of suitability
(a)Subject to A2.3 and A2.4, evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision may be in the form of one or a combination of the following:
(i)A report issued by a Registered Testing Authority, showing that the material or form of construction has been submitted to the tests listed in the report, and setting out the results of those tests and any other relevant information that demonstrates its suitability for use in the building.
(ii)A current Certificate of Conformity or a current Certificate of Accreditation.
(iii)A certificate from a professional engineer or other appropriately qualified person which—
(A)certifies that a material, design, or form of construction complies with the requirements of the BCA; and
(B)sets out the basis on which it is given and the extent to which relevant specifications, rules, codes of practice or other publications have been relied upon.
(iv)A current certificate issued by a product certification body that has been accredited by the Joint Accreditation System of Australia and New Zealand (JAS-ANZ).
(v) * * * * *
(vi)Any other form of documentary evidence that correctly describes the properties and performance of the material or form of construction and adequately demonstrates its suitability for use in the building.
…
(b)Any copy of documentary evidence submitted, must be a complete copy of the original report or document.
Against the background of those “general provisions”, the remaining sections of the NCC 2015 contained the particular standards, assessment methods and specifications against which products were required to be tested, and the “Performance Requirements” that products had to satisfy, in order to achieve compliance with the NCC.
Section C of NCC 2015 was entitled “fire resistance”. Unsurprisingly, it contained provisions concerning the required fire resistance qualities of various building applications. Relevantly, cl C1.0 of NCC 2015 (within Part C1, which was entitled “Fire Resistance and Stability”) provided, in part, that:
(a)Where a Building Solution is proposed to comply with the Deemed-to-Satisfy Provisions, Performance Requirements CP1 to CP9 are satisfied by complying with—
(i) C1.1 to C1.12…
…
In turn, cl C1.10 was entitled “Fire hazard properties” and provided, relevantly, as follows:
(a)The fire hazard properties of the following linings, materials and assemblies in a Class 2 to 9 building must comply with Specification C1.10:
…
(ii) Wall linings and ceiling linings.
…
Specification C1.10 set out some requirements concerning the fire hazard properties of linings, materials and assemblies. The requirements for wall linings and ceiling linings (which includes insulation products when used as a lining), in particular, were contained in cl. 4 of Specification C1.10, which relevantly provided as follows:
4. Wall and ceiling linings
(a)For the purpose of this Clause, the group number of a material is determined by either—
(i) physical testing in accordance with AS ISO 9705; or
…
(b)The group number of a material is as follows when tested or predicted in accordance with sub-clause (a):
(i)A Group 1 material is one that does not reach flashover when exposed to 100 kW for 600 seconds followed by exposure to 300 kW for 600 seconds.
(ii)A Group 2 material is one that reaches flashover following exposure to 300 kW within 600 seconds after not reaching flashover when exposed to 100 kW for 600 seconds.
(iii)A Group 3 material is one that reaches flashover in more than 120 seconds but within 600 seconds when exposed to 100 kW.
(iv)A Group 4 material is one that reaches flashover within 120 seconds when exposed to 100 kW.
(b)A material used as a finish, surface, lining or attachment to a wall or ceiling must be a Group 1, Group 2 or Group 3 material used in accordance with Table 3…
(Emphasis added)
“Flashover” is (and was) defined in the NCC as the point at which the total heat release rate in the test room reaches 1000 kW. As can be seen, a group number of “1” applies to linings that achieve the highest degree of fire resistance (flashover is not reached during 20 minutes of testing), while a group number of 4 designates the lowest degree of fire resistance (flashover is reached within two minutes of testing).
Table 3, referred to in clause 4(c) of Specification C1.10, then set out the permitted uses for wall and ceiling linings based on their group numbers. Linings that achieved a group number of “1” could be used in all applications listed in the table, while linings with a group number of “3” could be used in a more limited range of applications. Wall and ceiling linings with a group number of “4” were not permitted to be used at all. Quite clearly, then, the group number that wall and ceiling linings were able to achieve was a matter of some commercial significance.
As can be seen, demonstrating compliance with the NCC is not straightforward. It involves several different potential pathways, numerous defined terms and various modes of providing evidence of compliance. Nonetheless—and at the risk of oversimplification—what emerges from the above survey is that wall and ceiling linings were required, in order that they might comply with the Deemed-to-Satisfy Provisions of NCC 2015 relating to fire resistance (and, thereby, with the Performance Requirements and the NCC more broadly), to attain a group number of “1”, “2” or “3” when tested in accordance with AS ISO 9705.
2.3 AS ISO 9705
AS ISO 9705 or AS ISO 9705-2003 is an instrument produced or endorsed by Standards Australia, a non-government body that produces and endorses such instruments. It is entitled “Fire tests—Full-scale room test for surface products”. Clause 1 of AS ISO 9705 states that it “specifies a test method that simulates a fire that under well ventilated conditions starts in a corner of a small room with a single open doorway”, and that a test performed in accordance with that method “provides data for the early stages of a fire from ignition up to flashover”.
According to cl 5.1 of ASO ISO 9705, a “test room” within which a test under that standard is conducted must consist of four walls at right angles, a floor and a ceiling (the dimensions of which are specified). Many of the remaining sections of the standard traverse highly technical matters, including (amongst other things) the ignition source to be used for the test, the heat flux instrumentation in the fire test room, and the means of conducting a gas analysis. Of relevance, cl 11.1 of AS ISO 9705 provides that:
11.1The product to be tested shall, as far as possible, be mounted [in the fire test room] in the same way as in practical use.
NOTE 7In the standard specimen configuration, three walls and the ceiling are covered with the product. Alternative specimen configurations are given in annex G.
Annex G, in turn, provides as follows:
NOTE 22Different specimen configurations are possible depending on the practical use of the product under test and the specific situation that is to be studied.
G.1 Standard specimen configuration
In order to achieve comparable test data between laboratories, it is recommended that the walls (excluding the wall containing the doorway) and the ceiling are covered with the product. This is designated as the standard specimen configuration.
G.2 Alternative specimen configuration
Other possibilities are to test the product covering only the walls and having standard ceiling materials, or to test the product covering only the ceiling and having standard wall materials.
The standard materials should then be chosen in accordance with 11.4.
It is also possible to test combinations of different wall and ceiling products in order to evaluate specific scenarios.
In short, although the “standard specimen configuration” for testing in accordance AS ISO 9705 involves the application of a test product to three walls and the ceiling of the test room, AS ISO 9705 also contemplates tests that involve the application of a test product only to the ceiling or only to the walls of the test room. That flexibility assumes some significance presently.
2.4 NCC 2016
Although Section A of NCC 2016 contained some minor structural and terminological changes from NCC 2015, the compliance pathways there set out remained, in substance, unchanged. For present purposes, the compliance pathways set out in NCC 2016 were the same as those for which NCC 2015 provided: compliance was achieved by satisfying the Performance Requirements, which could, in turn, be satisfied by a Performance Solution (called an “Alternative Solution” in NCC 2015) or a Deemed-to-Satisfy Solution (being a solution that complied with the Deemed-to-Satisfy Provisions). As with NCC 2015, if a product complied with those provisions, it was deemed to comply with the Performance Requirements (and, therefore, the NCC).
Like NCC 2015, Section C of NCC 2016 contained the Deemed-to-Satisfy Provisions that related to fire resistance. Clause C1.0 provided, relevantly, that:
(a)Where a Deemed-to-Satisfy Solution is proposed, Performance Requirements CP1 to CP9 are satisfied by complying with—
(i) C1.1 to C1.13…
Clause C1.10 was in the same terms as in NCC 2015. Like its predecessor, it provided that the wall and ceiling linings in a Class 2 to 9 building must comply with Specification C1.10. Specification C1.10 in NCC 2016, however, required different testing to that mandated by its predecessor. It provided, relevantly:
(a)A wall or ceiling lining system must comply with the group number specified in Table 3…
(b)A group number of a wall or ceiling lining and the smoke growth rate index or average specific extinction area must be determined in accordance with AS 5637.1.
(Emphasis added)
Table 3 in Specification C1.10 of NCC 2016 was identical to its counterpart in NCC 2015. Accordingly, in order to comply with the Deemed-to-Satisfy Provisions of NCC 2016 relating to fire resistance, a wall or ceiling lining was still required to have a group number of 1, 2 or 3; but that group number must have been determined by testing undertaken in accordance with AS 5637.1.
2.5 AS 5637.1
AS 5637.1 is an Australian Standard (also produced or endorsed by Standards Australia) entitled “Determination of fire hazard properties—Part 1: Wall and ceiling linings”. It sets out the procedure for the assessment of various properties of internal wall and ceiling linings and, relevantly, allows for the determination of a lining’s group number. It incorporates AS ISO 9705-2003 as a test method that may be used to determine a product’s group number; but it imposes some additional requirements.
Under the heading “Determining group numbers”, cl 4.3 of AS 5637.1 reads:
The group number of a material shall be determined by either‑
(a)physical testing in accordance with AS ISO 9705‑2003; or
(b)if the material has a confirmed correlation, prediction in accordance with Clause 4.4 using data obtained by testing the material at 50 kW/m2 irradiance in the horizontal orientation with edge frame in accordance with ISO 5660-1 or AS/NZS 3837, as appropriate to the test conducted.
The following section is entitled “testing for the purpose of determining group number, smograrc and ASEA”. It provides as follows:
5.1 General
The AS ISO 9705—2003 room test shall be used for determining a group number and calculating SMOGRARC unless the material is listed in Clause 5.3.2 as having a correlation.
…
5.2 Testing to AS ISO 9705—2003
5.2.1 Specimens
When testing for the purposes of determining group numbers and SMOGRARC, the specimen shall be affixed to three walls and the ceiling, described in AS ISO 9705‑2003 as the standard specimen configuration. Tests of walls or ceilings alone shall not be used for determining group number or SMOGRARC.
(Emphasis added)
AS 5637.1, then, mandates testing in accordance with AS ISO 9705 for the purpose of determining a product’s group number; but it removes the flexibility previously afforded by Annex G of AS ISO 9705, such that a product cannot be tested in accordance with AS 5637.1 if it covers only the ceiling or only the walls of the room in which it is tested. Instead, the product must cover three walls and the ceiling of the test room.
Appendix C to AS 5637.1 is also of some significance. It provides, relevantly, as follows:
Where a material or system has been tested in either the room test or the cone calorimeter, the range of applicability will depend on many factors. The factors that need to be considered will not necessarily be the same for both tests.
Factors that should be considered are the following:
…
(b) Colour.
…
2.6 The NCC 2016 “Transitional Provision”
Specification A1.3 of NCC 2016 was entitled “documents adopted by reference”. It contained a “schedule of referenced documents”—that is, of various documents referred to in the operative provisions of the NCC (the majority of which are Australian Standards). Alongside the entry for AS 5637.1 in the schedule, there was a “note” that assumes central significance in this matter. That entry appeared as follows:
No. Date Title BCA Clause(s) AS 5637.1
Part 12015 Determination of fire hazard properties
Wall and ceiling linings
[Note: Test reports indicating the group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019.]Spec C1.10
During the trial and in the parties’ written submissions, this note was referred to as the “transition(al) provision” or the “grandfathering provision” (hereafter, the “Transitional Provision”). Its effect is apparent enough: group numbers that were determined by testing that was undertaken under versions of the BCA that applied prior to 1 May 2016 (including NCC 2015) remained validly determined until 1 May 2019, notwithstanding the more stringent testing requirements to which NCC 2016 gave effect.
2.7 NCC 2019
The requirements for determining a group number under NCC 2019 are the same as those that were contained in NCC 2016 (save that there is no equivalent of the Transitional Provision).
As will be explained later in these reasons, the resolution of Kingspan’s cross-claim in respect of the ISO3 Product turns on the construction of C1.10 of NCC 2019. That being so, it is prudent to set out its relevant parts. C1.10 of NCC 2019 reads as follows:
(a)The fire hazard properties of the following linings, materials and assemblies in a Class 2 to 9 building must comply with Specification C1.10:
…
(ii)Wall linings and ceiling linings.
…
…
(c)The requirements of (a) do not apply to a material or assembly if it is—
…
(viii)a paint, varnish, lacquer or similar finish, other than nitro-cellulose lacquer…
PART 3: BACKGROUND AND EVIDENCE
The proceeding was commenced by originating application dated 17 May 2019, by which Pirmax also claimed interlocutory relief. In particular, Pirmax sought various forms of injunctive relief in respect of certain materials published or conveyed by Kingspan (which materials will be described in detail later in these reasons).
Given the urgent nature of the interlocutory relief sought by Pirmax, the proceeding first came before Davies J in her capacity as duty judge and, subsequently, Middleton J in that same capacity. Each judge made standard procedural orders, including orders for the exchange of concise statements, affidavits, and expert reports. The proceeding was then allocated to my docket. Kingspan’s cross-claim was commenced by notice dated 7 June 2019.
The trial of the proceeding commenced on 28 June 2021 and ran across six days. The parties filed comprehensive written submissions, upon which they elaborated orally at a later hearing.
The court received written and/or oral testimony from 11 witnesses. Pirmax led evidence from:
(1)Mr Benjamin Robert Alan Hughes-Brown, a fire safety engineer and director of Ignis Solutions Pty Ltd, a fire safety consultancy firm, and Ignis Labs Pty Ltd, a fire safety test facility;
(2)Mr Jeffrey Stephen Lewinsohn, Pirmax’s managing director and majority shareholder;
(3)Mr Dale Ronald Alan Bradley, the director of Greenspec Solutions Pty Ltd, a supplier and installer of thermal and acoustic insulation products, including those manufactured by Pirmax;
(4)Dr Patrick Anthony Enright, a fire safety engineer and registered building practitioner, and the director of Enright Consulting Pty Ltd;
(5)Mr Travis Scott McCallum, the commercial director for Greater Asia for Huntsman Polyurethanes;
(6)Mr Steven John Ashton, a web design and computer repair technician who performed work as a contractor for Pirmax;
(7)Mr Stephen Alan Kip, a fire safety engineer and building surveyor, and the managing director of SKIP Consulting Pty Ltd; and
(8)Mr Owain Stone, a partner in forensic accounting at Korda Mentha.
Kingspan led evidence from:
(1)Mr Scott Ian Edgeworth Gibson, the managing director of Kingspan;
(2)Dr Jonathan Ross Barnett, a fire safety engineer and the managing director of Basic Expert Pty Ltd;
(3)Mr Keith Robert Anderson, the “Technical R&D and Accreditations Manager” of Kingspan;
(4)Mr Shane Andrew Leonard, a registered building surveyor and a director of Philp Chun & Associates Pty Ltd; and
(5)Ms Dawna Kathleen Wright, a senior managing director in forensic accounting at FTI Consulting.
Mr Hughes-Brown and Mr McCallum were called to give evidence in answer to subpoenas issued to each of them at Pirmax’s request. The remaining lay witnesses gave evidence by affidavit (or, in Mr Lewinsohn’s case, three affidavits; and, in Mr Gibson’s, two) and, with the exception of Mr Ashton, all were cross-examined.
Each of the expert witnesses provided their evidence by way of expert report (Dr Barnett produced four reports and made two affidavits; Dr Enright produced two reports, and the other expert witnesses each produced one report). Some of the expert witnesses gave evidence in conclaves: Mr Kip gave evidence concurrently with Mr Leonard, and Mr Stone gave evidence concurrently with Ms Wright. To facilitate that process, Mr Kip and Mr Leonard also produced a joint report, as did Mr Stone and Ms Wright. Dr Barnett and Dr Enright were cross examined on their evidence in the conventional manner.
In advance of the trial, each party filed a document setting out in tabular form its objections to the various affidavits and expert reports relied upon by the other party. In turn, each party provided a response to the objections that were raised, including, where appropriate, concessions that certain aspects of the evidence were no longer relied upon. Rather than ruling on each objection contained in the parties’ respective tables, those objections (and any responses to them) were instead treated as submissions as to the weight to be given to those parts of the evidence to which objection was taken.
The day before the trial commenced, Pirmax also filed a document entitled “pirmax’s outline of objection to admissibility of dr barnett’s evidence”. In summary, Pirmax objects to the whole of Dr Barnett’s evidence on several bases, each of which revolves around Dr Barnett’s alleged lack of independence—in particular, Pirmax asserts that Dr Barnett was an advocate or “hired gun” for Kingspan; and, relatedly, that any conformity of Dr Barnett’s opinion with Kingspan’s interests was the product of his lack of independence. That being so, Pirmax submits that Dr Barnett’s evidence was inadmissible under s 79 of the Evidence Act 1995 (Cth) (the “Evidence Act”); or, alternatively, that it ought to be excluded pursuant to s 135 of that act.
In its amended concise statement, Pirmax alleges that Kingspan made misleading or deceptive representations concerning Dr Barnett’s independence. Accordingly, the issue of Dr Barnett’s independence (or lack thereof) will be addressed as a preliminary matter. For reasons to which I shall shortly return, it suffices to record that I do not consider Dr Barnett’s evidence to be inadmissible under s 79 of the Evidence Act (or, more accurately, under s 76); nor do I consider that it ought to be excluded under s 135 of the Evidence Act.
Before the last day of the trial, the parties undertook the process of “filleting” the court book that had previously been provided to the court (and upon which the parties had relied up until that point). That process was apparently undertaken in order to remove documents that the parties had deemed unnecessary, such as those that were irrelevant or appeared in duplicate. That filleted court book was referred to as the “consolidated tender bundle”, and was tendered on the last day of the trial.
PART 4: DR BARNETT’S EVIDENCE
Pirmax objects to the whole of Dr Barnett’s evidence on the basis that he lacked independence, and was instead an advocate or “hired gun” for Kingspan. Pirmax urges the court to find that Dr Barnett’s evidence was inadmissible under s 79 of the Evidence Act; or, alternatively, that it ought to be excluded pursuant to s 135 of that act.
Section 76(1) of the Evidence Act provides as follows:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Section 79(1) contains an exception to that rule. It reads:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Section 135 of the Evidence Act is entitled “[g]eneral discretion to exclude evidence”. It provides as follows:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Pirmax submits that aspects of Dr Barnett’s conduct throughout his engagement by Kingspan’s solicitors was inconsistent with the Expert Evidence Practice Note (GPN-EXPT) (the “Practice Note”) and the Harmonised Expert Witness Code of Conduct (the “Code of Conduct”), by each of which he was required to abide. In turn, that was said to amount to conduct inconsistent with pt 23 of the Federal Court Rules 2011 (Cth) (the “Rules”). Pirmax submits that “[n]on-compliance with the [Rules] may make it more likely that s 79 is not satisfied, or that s 135 ought to be engaged”.
I do not consider that Dr Barnett’s evidence should be excluded for want of compliance with the Practice Note or the Code of Conduct. I accept that his evidence was at least substantially based upon his extensive knowledge and experience in the field of fire safety. I do not accept that, when he gave his evidence, he did so as an advocate or “hired gun”. His evidence was given consistently with the requirements of pt 23 of the Rules; and, even if it wasn’t, its admissibility is governed in any event by the Evidence Act, which does not require untrammelled independence or impartiality (however preferable those qualities plainly are): Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564, 570-571 [35]-[46] (“Ananda Marga”; Dodds-Streeton J); Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622, [29]-[36] (Wigney J).
Pirmax did not attempt to establish that Dr Barnett’s evidence failed to meet the requirements of s 79 of the Evidence Act. Rather, it asserts that the present circumstances warranted the approach that Mortimer J took in Guy v Crown Melbourne Ltd [2017] FCA 1104 (“Crown”). There, having reviewed the relevant provisions of pt 23 of the Rules, the Practice Note, and the Code of Conduct, Mortimer J made the following observation (at [50]):
…at a minimum…there must be substantial, at least purportedly substantial, compliance with Part 23, or a capacity substantially to comply with Part 23, by both a party and that party’s proposed witness, including a preparedness and capacity to acknowledge the necessity for an expert witness to be independent in the sense set out in the authorities, the Practice Note and the Harmonised Code.
Her Honour found (at [51]-[55]) that there had been “no attempt to comply with Part 23 in the first place” and, (after distinguishing the facts that were before her Honour from those faced by Dodds‑Stretton J in Ananda Marga) it followed, “no compliance at all” with that part by the expert witnesses. More importantly, her Honour found (at [56]):
In the present situation, quite unlike the Ananda Marga case, and given what he has already deposed, I fail to see how Dr Livingstone could promise to comply with and recognise the matters required by…Part 23, the Practice Note and the Harmonised Code. He is plainly well aware, and prepared to state, that he is an advocate for the cause of the applicant. I add I have no reason to believe Dr Livingstone would even consider attempting to proffer the declarations of independence required, or the acknowledgments of the need for independence. His candidness in his affidavit suggests he would not. I should also make it clear that there is no inherent criticism to be made of Dr Livingstone in the position he has taken in support of the applicant’s cause. The legal question is how that position affects his capacity to comply with Part 23 and the underlying core requirements for expert evidence.
In light of the conclusions that I have reached regarding Dr Barnett’s independence, and Dr Barnett’s statements that he had read and understood the Practice Note and the Code of Conduct, the circumstances confronting Mortimer J in Crown are distinguishable from those that arise here.
As to s 135 of the Evidence Act, Dr Barnett’s evidence plainly holds at least some probative value (even if the resolution of this matter does not turn solely upon it). The question then, is whether that value is substantially outweighed by any unfair prejudice that the receipt of that evidence would visit upon Pirmax. It is not. The prejudice to Pirmax, though obvious, is not unfair: Dr Barnett was not a partial expert, nor one whose independence from Kingspan was improperly or impermissibly compromised. But, even if he was, his evidence remained of some significance. I do not consider that any unfair prejudice attending its receipt substantially outweighs that probative value.
PART 5: THE HR PANEL PRODUCT
5.1 Pirmax enters the market for the supply of rigid foam insulation products
Pirmax was established by Mr Lewinsohn in 2015. As has already been mentioned, it entered the market for the manufacture and supply of rigid foam insulation products in early 2016. Since then, it has competed with Kingspan in that market.
Pirmax manufactures all of its products from facilities in Braeside, in Melbourne’s south-east. For the most part, Pirmax sells its products through distributors, which then supply its products to customers (typically builders and other participants in the building industry). Pirmax also has several “direct accounts” with customers that it supplies directly. Pirmax’s products are used in commercial, industrial, and domestic building projects.
The HR Panel Product is a polyisocyanurate rigid thermal panel product. It comprises a polyisocyanurate core—made from Daltofoam MR 40788, a polyol blend, and Suprasec 5005, a diisocyante-diphenylmethane-based composition—with a layer of aluminium foil bonded to the two largest external faces of that core (in other words, the core is “sandwiched between two layers of foil autohesively bonded to the insulation core during manufacture”).
Mr Lewinsohn gave evidence that, sometime in 2015, he approached Huntsman Polyurethanes (Australia) Pty Ltd (“Huntsman”), a supplier of polyurethane chemicals, in order that Pirmax might secure Huntsman’s assistance in developing its products. Since then, Pirmax has sourced all of its polyol and isocyanate from Huntsman.
The HR Panel Product is produced in different colour finishes (silver, white or black, although Mr Lewinsohn gave evidence that “99 per cent of Pirmax’s orders were for silver”). It is available in various thicknesses.
5.2 The HR Panel Product reports
Mr Lewinsohn gave evidence that, in order to ensure that Pirmax complied with applicable regulations (including the fire resistance requirements contained in the NCC), it arranged to have its products “tested by appropriately qualified and accredited testing facilities”, and that it “engaged independent fire engineers and other consultants” to provide all necessary compliance assessments and reports.
Several of those reports and related materials relied upon by Pirmax in respect of the HR Panel Product were in evidence and bear noting. They include:
(a)a test report by Exova Warringtonfire Aus Pty Ltd (“Exova”) entitled “Fire test of a ceiling lined with PIR Insulation panels, tested in general accordance with AS ISO 9705‑2003” first issued on 9 May 2016 (and subsequently revised on 26 May 2016, 16 June 2016, and 31 January 2017) (the “Pirmax Exova Report”);
(b)a report by Acronem Consulting Australia Pty Ltd (“Acronem”) entitled “Pirmax, PIR Insulation Panel – NCC 2016 Fire Hazard Properties Assessment for Ceiling Only Applications” dated 30 May 2016 and revised on 2 February 2017 (the “Acronem Report”);
(c)a report by Ignis Solutions Pty Ltd (“Ignis”) entitled “PIR MAX Insulation – Product Evaluation and Compliance” first issued for comment on 4 November 2018, finalised on 25 November 2018, and revised on 8 January 2019, 21 January 2019, 18 April 2019, 26 April 2019, 28 April 2019 and 17 May 2019 (the “Ignis Report”);
(d)a test report by CSIRO entitled “Thermal transmission properties of Pirmax PIR foam panel insulation” dated 22 March 2017;
(e)test reports by the Australian Wool Testing Authority Ltd (the “AWTA”) issued on 13 November 2015, 11 February 2016, 9 March 2017, 29 March 2018, 26 June 2018, 18 June 2019, 17 March 2020 and 18 March 2020;
(f)a series of “Engineering Evaluation Certificates” issued by Ignis dated 11 November 2016, 14 April 2017, 1 May 2018, 21 November 2018, 25 November 2018, 8 January 2019, 21 January 2019, 18 April 2019, 26 April 2019, 7 May 2019 and 17 June 2019 (the “Ignis Certificates”); and
(g)a report by Ignis entitled “Pirmax HR Insulation Panel Product Compliance Review” dated 22 May 2019.
It is unnecessary to describe in detail all of the various reports that were in evidence. There were many of them—several of which appeared in the consolidated tender bundle in numerous versions (each incorporating amendments or revisions to the one that preceded it). Some of those reports assume significance. In particular, in support of its claims that the HR Panel Product achieved a group 1 rating in silver and white finish, and that it achieved a group 3 rating in black finish, Pirmax relied upon the Pirmax Exova Report, the Acronem Report, the Ignis Certificates, and the Ignis Report. Attention will now turn to each of those documents.
5.2.1 The Pirmax Exova Report
In or around early 2016, Huntsman on behalf of Pirmax engaged the CSIRO to carry out a fire test on the HR Panel Product in accordance with AS ISO 9705-2003. At the time, however, Exova had the only testing facility approved by the National Association of Testing Authorities (hereafter, “NATA”). Accordingly, the CSIRO arranged for Exova to carry out the test instead. Exova carried out the test on 14 April 2016, and produced the Pirmax Exova Report on 9 May 2016 (with revisions coming later, as set out at [67(a)]).
The cover page to the Pirmax Exova Report stated that it is a “test report”, and recorded the “Test Date” as 14 April 2016. As recorded in its full title, the test to which the report relates is a “[f]ire test of a ceiling lined with PIR insulation panels, tested in general accordance with AS ISO 9705-2003”. The “Report Sponsor” is listed as the CSIRO. The second page of the Pirmax Exova Report records that it was first issued on 9 May 2016, and was re-issued three times, with each further issue correcting typographical errors.
Under the heading “test assembly”, the Pirmax Exova Report described the test as follows:
The test assembly comprised a fire test room whose ceiling was lined with the material being subjected to the test. The fire test room comprised of studwork walls and ceiling lined with plywood and two layers of 16 mm thick fire grade plaster board on the internal side. When unlined the fire test room had the internal dimensions of 3600 mm by 2400 mm by 2400 mm in height. The short wall opposite the ignition source had a centrally located doorway opening 800 mm wide by 2000 mm in height. The room was lined with the sample material on the ceiling only.
Under the heading “test procedure”, the report stated:
STATEMENT OF COMPLIANCE
The test was performed in general accordance with the requirements of AS ISO 9705-2003. The test procedure was subject to the variations below.
VARIATIONS TO TEST METHOD
…
At the request of the client the specimen was not installed in strict accordance with the standard installation method in AS ISO 9705 — 2003 (wall and ceiling lined) rather a ceiling only installation was undertaken.
The Pirmax Exova Report then described, in some detail, various aspects of the test procedure that was followed, and the test measurements that were recorded. Under the heading “test results”, the report stated as follows:
The peak heat release rate determined during the test was 831 kW.
Classification
Exova Warringtonfire Aus is unwilling to recommend that the data obtained from this test is suitable for the determination of group number in accordance with the regulatory requirements of Clause C1.10 of NCC (BCA).
5.2.2 The Acronem Report
The Acronem Report was prepared by Dr Cameron Chick, and approved by Mr Hughes‑Brown. It is not a test report; Acronem did not perform any kind of test on the HR Panel Product about which it reported. Rather, the Acronem Report is Acronem’s review and analysis of the Pirmax Exova Report, upon which it purports to attribute to the HR Panel Product a group number for NCC purposes. It was initially issued on 30 May 2016, with a revised version issued on 2 February 2017 (which incorporated the various revisions that had been made to the Pirmax Exova Report).
As the Acronem Report recorded, its purpose was:
To perform an assessment of the fire hazard properties of the [HR Panel Product] ceiling lining system to satisfy the National Construction Code 2016, Volume One, Building Code of Australia (NCC-BCA), Clause C1.10-4 requirements for:
- Group number, and
- Smoke Growth Rate Index (SMOGRARC).
The Acronem Report recorded as follows how that assessment was to be (and was) made:
The assessment is made on an analysis of relevant test data compared with the requirements of the NCC-BCA as presented in the following documents:
-[the Pirmax Exova Report].
-National Construction Code 2016, Volume 1, Building Code of Australia, Class 2 to 9 Buildings.
-AS 5637.1:2015, Determination of fire hazard properties.
The assessment addresses the Group number and SMOGRARC of:
-[the HR Panel Product] when installed as a ceiling lining system as tested in [the Pirmax Exova Report].
The assessment is valid subject to the conditions and limitations outlined herein. It must not be interpreted as encompassing any other matter or product. This assessment specifically excludes any application where [the HR Panel Product] is installed as a wall lining.
Under the heading “NCC 2016, Volume One, BCA Relevant Requirements”, the report stated:
As per NCC-BCA Part A1, fire hazard properties indicate how a material or assembly behaves under specific fire test conditions. The fire hazard properties relevant to this assessment include Group number and smoke growth rate index (SMOGRARC).
These fire hazard properties are assessed in accordance with A0.2(b) through compliance with the deemed to satisfy requirements. Evidence of suitability in accordance with A2.2(a) is provided through the combination of:
(i)A report issued by a registered Testing Authority, showing that the material or form of construction has been submitted to the tests listed in the report, and setting out the results of those tests and any other relevant information that demonstrates its suitability for use in the building.
Means of compliance: [the Pirmax Exova Report].
(iii) [sic] A certificate from a professional engineer or other appropriately qualified person which—
(A)certifies that a material, design or form of construction complies with the requirements of the BCA; and
(B)sets out the basis on which it is given and the extent to which relevant specifications, rules codes of practice or other publications have been relied upon.
Means of compliance: This report which has been verified by a qualified Fire Safety Engineer listed on the Australian ‘National Professional Engineering Register’ for Fire Safety Engineering.
In accordance with A2.4(c), group number or smoke growth rate index (SMOGRARC) has been determined in accordance with Specification C1.10, Clause 4(b).
It is apparent, then, that the Acronem Report was intended to serve as a certificate of the kind described in A2.2(a)(iii) of NCC 2016 and, when read in conjunction with the Pirmax Exova Report, to provide evidence that the HR Panel Product satisfied C1.10 (a Deemed-to-Satisfy Provision).
Under the heading “Group Number and Smoke Growth Rate Index”, the Acronem Report further provided, relevantly:
…
C1.10 requires the fire hazard properties of the ceiling linings, materials and assemblies in a Class 2 to 9 building to comply with Specification C1.10.
Specification C1.10 Clause 4(b) requires the group number and smoke growth rate index of a ceiling lining system to be determined in accordance with AS 5637.1.
Specification A1.3 lists documents adopted by reference including the new reference to AS 5637.1 which incorporates the following transitional note, “Test reports indicating a group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019”.
Whilst AS 5637.1, Clause 5.2.1 identifies specific specimen requirements for AS ISO 9705-2003, the NCC 2016, Volume One, Building Code of Australia, Specification A1.3 reference above makes provision for the validity of test reports determined under previous versions of the BCA applicable prior to 1 May 2016 until 1 May 2019.
…
The [HR Panel Product] lining system was mounted to the ceiling of the test chamber in accordance with AS ISO 9705, G 2 Alternative specimen configuration, “Other possibilities are… to test the product covering only the ceiling and having standard wall materials.”, rather than G.1 Standard specimen configuration (ceiling and walls). AS ISO 9705-2003, Note 22 identifies “Different specimen configurations are possible depending on the practical use of the product under test and the specific situation that is to be studied.”
…
The peak heat release rate determined during the test was 0.831 (MW). The test did not reach flashover and supports a Group 1 rating of the ceiling lining system subject to the limitations of use detailed in Section 7.
The Acronem Report concluded:
The ceiling lining system has been tested in accordance with G.2 of AS ISO 9705‑2003, with the product covering only the ceiling and having non-combustible wall materials.
The test results for the [HR Panel Product] ceiling lining system support a Group 1 rating and Smoke Growth Rate Index of 21.0 (m2/s2 x 1000) subject to the limitations of use detailed in Section 7.
This assessment is based on the test report [i.e. the Pirmax Exova Report] and documentation listed. Whilst the responsibility for the accuracy and applicability of the test and report remains with their authors, I am of the opinion that such test and report have been prepared, controlled and reviewed on sound basis.
Section 7, “Validity”, then recorded the limitations alluded to above. They include that the assessment “specifically excludes any application where [the HR Panel Product] is installed as a wall lining”.
Pirmax asserts that the Pirmax Exova Report when read together with the Acronem Report satisfied the evidence of suitability requirements of NCC 2016, and thereby enabled the determination of a group number for the HR Panel Product when installed as a ceiling lining.
5.2.3 The Ignis Report
Pirmax also places reliance on the Ignis Report, which was written and authorised by Mr Hughes-Brown. The stated purpose of the Ignis Report was:
…to report the applicable use and compliance of the various [HR Panel Products] against the requirements of the National Construction Code – Volume One – Building Code of Australia, 2015, 2016, 2016 Amendment 1 (BCA)…
Like the Acronem Report, the Ignis Report was not a test report, and was instead intended to serve as a certificate from a professional engineer as contemplated by cl A2.2(a)(iii) of the NCC. The report stated, relevantly, that the HR Panel Product has been evaluated and considered to comply with the NCC for use on internal ceilings as soffit lining (being the use addressed in the Pirmax Exova Report and the Acronem Report). The Ignis Report also stated that the HR Panel Product complied with the NCC when used within the wall cavity for internal and external walls and within external panel wall stud frames (that is, not as a lining).
Under the heading “ceiling soffit lining – deemed to satisfy provisions” the Ignis Report relevantly recorded:
3.1 Introduction
BCA Clause C1.10 as well as BCA Specification C1.10 sets the requirements of a ceiling soffit lining to be evaluated in accordance with AS 5637 and achieve a required Group number for the respective location.
3.2 Testing, Evaluation and compliance
The [HR Panel Product] with a silver finish has been tested by Exova Warrington in accordance with AS ISO 9705 in a soffit insulation with the following results demonstrating a Group 1 classification.
Internal Ceiling soffit lining – Silver/White finish
BCA Clause
Test Report
Clause C1.10, Specification C1.10 Clause 4
EWF 42119200.1 09.05.16
AS ISO 9705-2003 Full Scale Room Test (soffit only)
Group number
1
SMOGRARC
49 m2s-2 x 1000
The [HR Panel Product] has been tested by AWTA in accordance with AS/NZS 3837:1998. Based on the multi-layered approach under Clause 5.4 of AS 5637.1:2015 the combustible component being the core has been tested. The results demonstrate a Group 3 classification and can be used in sprinklered areas of building where a Group 3 classification is permitted under the BCA.
Internal Ceiling soffit lining – Silver/White finish
BCA Clause
Test Report
Clause C1.10, Specification C1.10 Clause 4
AWTA 18-001500 29.03.18
AS/NZS 3837 1998 Cone Calorimeter
Group number
3
SMOGRARC
278.5 m2s-2 x 1000
The above results are applicable and compliant to the BCA Deemed to Satisfy requirements under the National Construction Code – Volume One – Building Code of Australia – 2015, 2016 and 2016 Amendment 1.
Under the heading “fire safety summary” the Ignis Report concluded:
The above evaluation has considered the use of the [HR Panel Product] in three applications:
1. Ceiling soffit application exposed or concealed
2. Internal wall cavity insulation
3. External wall cavity insulation or internal lining of external concrete wall
The use of the [HR Panel Product] with a silver or white face in application 1 and 2 above comply with the requirements of the BCA Deemed to Satisfy Provisions under current conditions for the application within sprinklered or non-sprinklered buildings where a Group 1 material is permitted. The black faced material is permitted to be only used in sprinklered protected buildings were a Group 3 material is permitted. Table 1 of BCA Specification A1.3 details that test reports indicating the group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019.
5.2.4 The Ignis Certificates
As already recorded, in evidence also was a series of certificates issued by Ignis in respect of the HR Panel Product. Each of the Ignis Certificates was described as an “Engineering Certificate” or an “Engineering Evaluation Certificate”.
Mr Hughes-Brown gave evidence that the purpose of each certificate was to provide, in respect of the HR Panel Product, a “succinct snapshot…in a single document” of the applicable clauses and performance criteria in the NCC, to demonstrate compliance with the NCC, and to set out any limitations in respect of the product. He described it as “a summary or reduced detail report or certificate” based on the Ignis Report, and stated that it “provide[d] an overview…the reader still needs to go to [the Ignis Report] for further details of justification”.
Taking the certificate issued on 21 January 2019 as an example, its purpose is recorded as follows:
The purpose of this Certificate is to document the applicable use and compliance of the [HR Panel Product] against the requirements of [NCC 2016] for insulation to be used as a[n] internal soffit lining. The relevant installation is as per the attached installation detail provided by PIRMAX. This certificate is to be read in conjunction with [the Ignis Report].
Like the Ignis Report, each certificate was intended to serve “as a certificate from a professional fire engineer in accordance with Clause A2.2(a)(v) of [NCC 2016 Amendment 1]”. After describing the HR Panel Product and the various formats in which it was available, the certificate continued:
Scope of Use
·[the HR Panel Product] has been evaluated and considered to comply with the requirements of the BCA in the following applications:
· Use on internal ceilings as a soffit lining (being exposed or concealed)
Limitation
·Within Australia, The Silver and White [HR Panel Product] can be used as an internal lining to ceilings where Group 1 products are required where the building or compartment is provided, with or without an Automatic Fire Sprinkler System.
·The Black [HR Panel Product] can be used as an internal lining to ceilings where a Group 3 product is required in a sprinkler protected building.
At the end of the certificate appear two boxes, which it is convenient to replicate:
Silver / White finish
Group Number
1
SMOGRARC
49 m2s-2 x 1000
Black finish
Group Number
3
SMOGRARC
278.5 m2s-2 x 1000
Although the form of the Ignis Certificates changed over time (the certificates in evidence spanned a three-year period from November 2016 to June 2019), the substance of the representations that they contained remained consistent—in particular, from around 21 November 2018, the Ignis Certificates represented that the HR Panel Product achieved a group 1 rating in silver and white finish and a group 3 rating in black finish.
5.3 Marketing the HR Panel Product
Mr Lewinsohn gave evidence that Pirmax marketed the HR Panel Product by issuing “technical datasheets”, and disseminating them to distributors, customers and potential customers—either by providing the technical data sheets to those persons by email or making them available for download on the Pirmax website. Pirmax also provided its distributors and direct accounts (those customers to which Pirmax supplied products directly) with the reports described at [67] above. Mr Lewinsohn gave evidence that Ms Menadue “arranged preparation of the technical data sheets and other marketing material for [the HR Panel Product]” based on those reports.
Several versions of the technical data sheets were in evidence, most of which were undated but referred to by their respective “version”. Early iterations of the data sheets included the following statements about the HR Panel Product:
(a)“Fully compliant to the Australian National Construction Code”;
(b)“Achieves a Group 1 BCA/NCC fire classification when tested to AS ISO 9705‑2003, compliant to the 2016 National Construction Code”;
(c)“Applications: Soffit (Carpark Application), Walls External/Internal, Raised Underfloor, Ground Floor Slabs, Ceilings, Roofs, Domestic and Commercial Ducting, External Cladding”;
(d)“NCC/BCA Compliant”;
(e)“Group Classification AS ISO 9705:2003: Group 1 Lining”; and
(f)“Group Classification AS/NZS 3837:1998: Group 1 Lining”.
A subsequent version of the data sheet, labelled as “v 3.2” (and apparently dated 17 January 2018), included the following representations:
(a)“Achieves a Group 1 BCA/NCC fire classification when tested to AS 5637.1 (ISO 9705), compliant to the National Construction Code, NCC/BCA Volume 1: Specification C1.10”;
(b)An image stylised as a circular rubber stamp engulfed in flames with the text “AS 5637.1 CLASSIFICATION” around the circumference of the stamp and “GROUP 1” in large text embossed across the centre of the stamp;
(c)“Applications: Soffit (Carpark Application), Walls, Raised Underfloor, Ground Floor Slabs, Ceilings, Roofs, Domestic and Commercial Ducting”;
(d)“NCC/BCA Compliant”; and
(e)“Group classification: AS 5637.1 (ISO 9705) Group 1”.
A further version of the data sheet (publicly available from at least December 2019) included the following representations:
(a)“Achieves a Group 1 BCA/NCC fire classification when tested to AS 5637.1 (ISO 9705), compliant to the National Construction Code, NCC/BCA Volume 1, Specification C1.10 (ceiling/soffit only)”;
(b)“Typical applications include:
·Soffit (Carpark Applications)
·Wall systems
·Raised Underfloor
·Ground Floor Slabs
·Ceiling Systems
·Roofs
·Domestic and Commercial Ducting”;
(c)“NCC/BCA Compliant”; and
(d)“**Group Classification AS 5637.1 (ISO 9705) Group 1 [in silver finish] Group 1 [in white finish] Group 3 [in black finish]”.
The double asterisk that preceded the representation about the HR Panel Product’s group classification corresponded with a double asterisk at the bottom of the next (and final) page of that data sheet, which read as follows:
**Achieves a group 1 classification in accordance with AS 5637.1:2015 and AS 1530.3 under BCA Clause C1.10 Clause 4 and 7 respectively. The AS ISO 9705-2003 testing included a soffit application only. Black Facing option achieves a group 3 in SOFFIT applications
Mr Lewinsohn also gave evidence that, by means of marketing, Pirmax made various statements about the HR Panel Product on its website, including as follows
(a)“tested to meet the stringent requirements of the building codes australian and national construction code”;
(b)“fire safety certified”;
(c)“Pirmax PIR Panels meet the stringent requirements of the Building Codes Australia (BCA) and National Construction Code (NCC)”;
(d)“Group 1 ISO 9705-2003 ceiling lining system in accordance with BCA 2016”; and
(e)“Has Pirmax been tested for ASISO 9705-2003? – Yes, Pirmax has a Group 1 AS ISO 9705 – 2003 / AS 5637.1:2015, Determination of fire hazard properties. The peak heat release rate determined during the test was 0.831 (MW). The test did not reach flashover and supports a Group 1 rating of the ceiling lining system in accordance with BCA 2016 (Refer to page 8 of Acronem NCC 2016 Fire Hazard Properties Assessment for ceiling only applications report summary)”.
5.4 Kingspan’s concerns about Pirmax’s performance claims
As alluded to earlier, Kingspan is a subsidiary of Kingspan Group PLC, a global manufacturer of building products. It has been manufacturing rigid thermoset polyisocyanurate insulation foam for nearly 40 years, and has been selling rigid thermoset insulation in the Australian market since 2009. It manufactures its products at various locations around the world, including at a manufacturing facility in Somerton, in Melbourne’s north.
In addition to its rigid thermoset polyisocyanurate products, which are produced under the product name “Therma”, Kingspan manufactures a rigid thermoset phenolic insulation product range called “Kooltherm”, which includes the “Kooltherm K10” product. As already stated, Kingspan and Pirmax compete in the market for the supply of rigid thermoset insulation products—in particular, Kingspan’s Kooltherm product range competed directly with the Pirmax HR Panel Product.
There was evidence that Kingspan had a practice of testing its competitors’ products from time to time. Mr Gibson gave evidence that:
Kingspan…carries out product testing to ensure that we are competing on a level playing field. When we see claims made by our competitors that we are dubious about, we will often investigate further…
For Kingspan, the process of investigating the performance claims made by a competitor will usually commence with a desk top analysis. This involves Kingspan’s technical R&D team obtaining the literature available on the product, including the product data sheets and the relevant product certificates, along with a sample of the relevant product certificates, along with a sample of the relevant product. We review this information and material and if our further investigations do not identify any anomaly or concern in which case we do not further investigate. If we find that there are anomalies or there are performance claims that are beyond what are typical for the product type, we usually write to the company and seek verification.
If the manufacturer’s response on verification of its claims is not satisfactory to Kingspan’s analysis, Kingspan usually proceeds to undertaking testing of the product.
This testing may be done internally in the first instance, however, if the results do not verify the product’s performance claims, we typically engage a third party to obtain samples and have the product independently tested.
Similarly, Mr Anderson gave the following evidence:
I also regularly monitor the compliance of competitors’ products to check that their compliance claims are accurate. When evaluating a competitor’s product, I usually commence by working closely with Ashley Vicente to conduct a technical examination of the product technical data to test against the performance claims made by the manufacturer to the market.
If we form the view that those claims are unreasonable or unsupported by technical evidence, then, from time to time, depending on the impact which Kingspan perceives the product is having on Kingspan’s business, I may arrange for the product to be tested either by Kingspan internally, by a third party externally, or both. The properties we test for are typically thermal and fire performance, being the two most important properties of rigid thermal insulation being relevant to NCC requirements for energy efficiency and fire safety.
Mr Gibson and Mr Anderson each gave evidence that, shortly after Pirmax’s entry into the market, they began to suspect that Pirmax was overstating the performance of the HR Panel Product’s thermal, dimensional and fire resistance properties. Mr Gibson gave evidence that, although phenolic products (like Kingspan’s Kooltherm product range) typically achieve greater fire performance and produce less smoke than polyisocyanurate products, Pirmax had made claims to the effect that the HR Panel Product outperformed the Kooltherm product range and “any other conventional [polyisocyanurate] product manufactured anywhere in the world”. Mr Anderson likewise gave evidence that he doubted the HR Panel Product could achieve similar thermal and fire performance to the Kooltherm K10 product “because Pirmax was a relatively new manufacturer…and because K10 was a phenolic insulation that typically achieves a better thermal performance [than] polyisocyanurate”.
In light of those concerns—and consistently with its approach to testing its competitors’ products—Kingspan began investigating the performance claims made by Pirmax in respect of the HR Panel Product.
Mr Anderson gave evidence that, in March 2016, he instructed a Kingspan employee, Ms Ashley Vicente, to conduct testing of the HR Panel Product’s thermal performance internally at Kingspan using a heat flow meter on-site in Perth. Mr Anderson believed that the results of those tests showed that the HR Panel Product’s thermal conductivity rating was higher (meaning its insulation performance was poorer) than what Pirmax had represented in the advertising and technical materials that he had reviewed.
Mr Anderson also gave evidence that, from around June 2016, he became aware of the Pirmax Exova Report which, he said, caused him concern, given:
(a)the report did not refer to the HR Panel Product, but instead referred to a test specimen identified as “Daltofoam MR 40788” and “Suprasec 5005”;
(b)the test report was sponsored by the CSIRO, and not Pirmax;
(c)the testing was conducted on 14 April 2016, which was two weeks prior to the commencement of NCC 2016 (which provided for testing in accordance with AS 5637); and
(d)the test report was issued on 9 May 2016, after NCC 2016 had come into effect.
Mr Anderson stated that he likewise held concerns about the Acronem Report, because it was not issued before 1 May 2016.
Mr Anderson gave evidence that, in light of the results of the internal testing that Kingspan had performed, he decided to commission independent testing on the HR Panel Product. Initially, Mr Anderson arranged for Kingspan to engage the AWTA to conduct a series of thermal conductivity tests from mid-2016 through to early-2019. He gave evidence of his belief that the testing performed by AWTA revealed significant material variability in the HR Panel Product’s thermal performance. He also arranged for Kingspan to engage the CSIRO to perform thermal conductivity testing on the HR Panel Product. The CSIRO issued a report in respect of that testing on 2 December 2016 (the “CSIRO Report”), which showed that the specimen that it tested achieved a thermal conductivity rating that Mr Anderson considered was significantly in excess of what Pirmax had advertised.
Mr Gibson gave evidence that by the end of 2016, and as a result of Kingspan’s internal investigations, Kingspan was of the view that:
(a)the thermal performance and fire performance claims made by Pirmax in its advertising materials and technical data sheets overstated the performance of the HR Panel Product; and
(b)there were anomalies in Pirmax’s AS ISO 9705 fire test documentation.
In particular, Mr Gibson gave evidence that Kingspan was of the view that Pirmax’s claims that the HR Panel Product achieved a group 1 fire rating were false, and that Pirmax was claiming the HR Panel Product had a group 1 fire rating without having conducted the requisite testing in accordance with AS 5637.1.
5.5 Kingspan’s counter-marketing efforts
By at least early-2017, Kingspan commenced what was described as a “counter-marketing” campaign. It began sharing its concerns about the HR Panel Product with building industry participants. It did so with the aim of discrediting Pirmax’s performance claims, while simultaneously putting its own product forward as a more reliable alternative. Mr Gibson gave evidence in cross-examination that counter-marketing was common “in our industry and our business”.
Initially, those concerns were focused on the HR Panel Product’s thermal performance and its dimensional qualities. For example, on 25 January 2017, Mr Andrew Wisbey, who held the role of Kingspan’s “State Specification Manager WA”, sent an email to certain employees at Multiplex with the subject line “RE: David Jones Mandurah”. That email read, in part, as follows (errors original):
…
Further to my previous email we believe that one of the products proposed for David Jones is PIRMax. PIRMax is an Australian made PIR board which has been on the market for approximately 1 year now. Should there be any failures to the product will PIRMax be in a position to rectify them?
For this application the product used will need to achieve a group number showing fit for use as a lining material. This is achieved through the ISO9705 full scale room burn test. Attached are the test results from PIRMax to claim this Group number.
Please note that page 4, 6 and 8 of this report the product description is 70mm thick PIR insulation with 0.6 mm thick embossed aluminium foil”, however independent testing of the product in the market place is showing that the foil facing used on the product is up to 50% thinner than the product tested. Please see attached AWTA report with foil face thickness showing between .3 and .38 foil being used. The foil thickness is relative to the performance of the product in the event of a fire. We strongly support testing with this .3 or .38 foil would have failed.
As we mentioned on the Perth Stadium project Alex, Kingspan is the largest manufacturer of PIR in the world however Phenolic insulation is more fit for purpose due to its increased fire properties and less smoke obscuration. We also hold FM approval which no PIR board obtains.
We were not specified in this project but I feel compelled to highlight to you some of the products and testing results in the market today. Without third party certification such as CODEMARK, it is a very complicated process to research all these documents.
…
The elements of the tort are well established. They were restated by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404 [52] as follows (citations omitted):
The elements of the action for injurious falsehood usually are expressed in terms which derive from Bowen LJ’s judgment in Ratcliffe v Evans, to which further reference will be made. Thus, generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.
In a recent decision of this court, National Roads and Motorists’ Association Ltd v Construction, Forestry, Mining and Energy Union (2019) 291 IR 28, Griffiths J provided a summary of the third and fourth elements of the tort, which I gratefully adopt. As to malice, his Honour made the following observations (at 76-77 [191]-[195]):
Malice is an essential element of the tort. As Weinberg J observed in Orion at [200], malice “is never easy to define in the law of tort”. His Honour referred approvingly at [202] to a passage at paragraphs [145–835]–[145–845] in volume 10 of Halsbury’s Laws of Australia where it is stated that malice may not be inferred from the fact of publication, but will be inferred where a false publication was made with an intent to injure without just cause and with knowledge of the falsity or reckless indifference as to its truth or falsity (see also Roberts v Bass [2002] HCA 57; 212 CLR 1 at [91] per Gaudron, McHugh and Gummow JJ and the authorities referred to therein).
Significantly, however, it is insufficient to show that the false publication was made with a mere lack of care or with an honest belief in its truth. Malice is often understood to involve an intent to injure another without just cause or excuse or by some indirect, dishonest or improper motive. Malice involves that the statement was made mala fide or with a lack of good faith. A person who acts in good faith is not liable.
In Fairfax Media, Brereton J gave the following explanation at [31], with which I respectfully agree:
Again unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff. While the notion of “malice” in the context of this tort is not easy to define [Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 291 (Pincus J)], it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person [British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260 269; Browne v Dunn (1893) 6 R 67, 72; Dickson v Earl of Wilton (1859) 1 F&F 419, 427 (1859) 175 ER 790; Stuart v Bell [1891] 2 QB 341, 351 Shapiro v La Morta [1923] All ER Rep 378; Schindler Lifts Australia Pty Ltd v Debelak, 291]. The English Court of Appeal has said that the criteria for malice in injurious falsehood are the same as at common law for libel and slander [Spring v Guardian Assurance PLC [1993] 2 All ER 273, 288; reversed on other grounds Spring v Guardian Assurance PLC [1995] 2 AC 296]. Its content has been variously described as “an intent to injure another without just cause or excuse” or “some indirect, dishonest or improper motive” [J Fleming, The Law of Torts, 9th ed (1998) LBC Information Services at 780; Palmer Bruyn, 423 [108] (Kirby J)], or “a purpose or motive that is foreign to the occasion and actuates the making of the statement” [cf Roberts v Bass (2002) 212 CLR 1 , 30, [2002] HCA 57 [75] (Gaudron, McHugh & Gummow JJ)]. It involves that the statement was made mala fide or with a lack of good faith. In this context, while a person who acts in good faith is not liable [Joyce v Sengupta [1993] 1 All ER 897], malice may exist without an actual intention to injure [Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220; Wilts United Dairies v Thomas Robinson [1958] RPC 94].
Whilst malice will typically be inferred from affirmative knowledge of falsity and, perhaps, from reckless indifference as to the truth, a mere lack of affirmative belief in truth is insufficient of itself to establish malice (Roberts v Bass at [15], [39]–45] per Gleeson CJ, [76]–[104] per Gaudron, McHugh and Gummow JJ). In Orion, Weinberg J said at [222] that the relevant threshold of malice was not met in the circumstances there:
[I]t is my view that Mr Apostolides genuinely believed that all of the factual allegations which he made about the collars were true. He believed that dogs had been burned as a result of their use. He also believed that they inflicted a 3,000 volt shock. These were damaging statements to make about Innotek’s products. However, though false, they were not made maliciously.
In establishing malice, recklessness does not simply mean carelessness, even in a high degree. It means “indifference to its truth or falsity.” Negligence or carelessness is insufficient to establish malice and thereby give rise to liability for injurious falsehood. Even a lack of affirmative belief in truth will not, of itself, establish malice.
Later in the judgment, as to actual damage, his Honour provided the following recitation of the relevant principles (at 80 [209]-[211]):
An applicant alleging the tort of injurious falsehood must prove that it has suffered particular and identifiable loss or damage as an essential element of the tort. The actual damage done is the very gist of the action. The requirement has been variously stated as requiring the plaintiff to establish “special damage”, “particular and identifiable loss or damage” and “actual damage” (Ratcliffe v Evans at 527–528 per Bowen LJ; Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission [1998] FCA 1560; (1999) ATPR 41–669 at 42–537 per Lindgren J). The tort of injurious falsehood does not provide a cause of action for mere injury to either reputation or feelings. A party seeking to establish injurious falsehood must plead and prove actual, that is, identifiable financial loss or damage, as an essential element of the tort.
For example, in Orion, Weinberg J said at [198]:
In some respects, this tort bears a marked resemblance to defamation. Both involve a false and harmful imputation concerning the plaintiff which is made to a third party. They differ, however, in that the law of defamation protects interests in personal reputation while injurious falsehood protects interests in the disposability of a person’s property, products or business. Defamation is generally actionable without proof of damage. Falsehood is presumed and liability is strict. In an action for injurious falsehood, the plaintiff must prove that he sustained actual economic loss, that the offending statement was false, and that it was made with intent to cause injury without lawful justification. The requisite state of mind is often described as malice.
Similarly, in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, Hunt CJ at CL said at 408:
The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation (Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694) or feelings (Fielding v Variety Inc [1967] 2 QB 841 at 850), damages for injurious falsehood would appear to be restricted to the recovery of that actual damage: ibid at 850.
8.3 Alleged injurious falsehoods
Pirmax relies upon the same statements or representations that Kingspan made in respect of the HR Panel Product for both its claims under the ACL and its claims in injurious falsehood. For the reasons identified at [196] to [213], Pirmax submits that those statements were false.
As to the second element of the tort, Pirmax submits that there was ample evidence showing that Kingspan published correspondence in the form of the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report and the Narrated Video to several market participants, including regulatory authorities.
As to the third element, Pirmax submits that the following matters suffice to establish that Kingspan’s conduct was attended by malice, namely:
(1)Kingspan’s overall strategy, from early-2016, to “disparage” Pirmax’s HR Panel Product by representing that it did not comply with the relevant NCC standards;
(2)Kingspan communications to the market from around May 2019, including the Project Shield and Sword Emails, Kingspan Exova Report, the Barnett Report and the Narrated Video;
(3)the fact that Kingspan’s intention (through Mr Gibson and Mr Anderson) was to regain market share lost to Pirmax;
(4)that Kingspan (again through Mr Gibson and Mr Anderson) knew that its representations were false or were recklessly indifferent as to their truth;
(5)that Mr Gibson, Mr Anderson and Dr Barnett knew, or ought to have known, that Pirmax’s claims about its HR Panel Product having a group 1 classification were expressly qualified in Pirmax’s materials and in the reports of the experts on which it relied (in that Pirmax relied on a ceiling-only test and the Transitional Provision). On that score, Pirmax points to Kingspan’s reliance upon the Transitional Provision as permitting use of a ceiling-only test for one of its own Kooltherm products;
(6)that Kingspan made its representations in circumstances when it knew, or ought to have known, that the technical data sheets for the HR Panel Product stated that it was compliant with the applicable Australian standard to achieve a group 1 rating for ceiling and/or soffit use and, further or alternatively, that the relevant testing was conducted according to conditions prescribed by AS ISO 9705-2003 for ceiling and/or soffit application only;
(7)that Kingspan made and repeated its representations in circumstances when it knew, or ought to have known, that potential purchasers of the HR Panel Product were provided with or had available to them copies of reports commissioned by Pirmax (being the Pirmax Exova Report, the Acronem Report, and the Ignis Report); and
(8)that Kingspan engaged the respective authors to produce the Kingspan Exova Report and the Barnett Report, produced the Narrated Video, and published them to market participants to further its “strategy”—in the knowledge that the wall-and-ceiling test conditions were not the applicable use for which the Product was designed or promoted by Pirmax, given that the HR Panel Product was classified as group 1 for soffit/ceiling‑only and that Pirmax relied on the Transition Provision.
As to the proof of actual damage that it had suffered, Pirmax submits that Kingspan’s conduct led to Pirmax losing customers and projects (which also led to a related loss of “growth in sales”). Pirmax also submits that Kingspan’s conduct served to deprive it of an opportunity to sell its business to Huntsman, which constituted damage in the relevant sense.
8.4 Kingspan’s defence
Kingspan submits that, to the extent that it did make any of the representations alleged by Pirmax, those representations were factually correct (for the reasons set out at [218]-[226] above).
Kingspan submits that there is no basis to suggest that it engaged in conduct with malice or any intent to cause illegitimate harm to Pirmax’s business. It submits that the evidence established that Kingspan “had a legitimate purpose of seeking a level playing field by urging stakeholders to seek accurate information from Pirmax”, and that Kingspan’s conduct in disseminating the Project Shield and Sword Emails “was careful, considered and otherwise a step which came only after unsuccessful efforts to engage with Pirmax”. To that end, Kingspan contends that the Project Shield and Sword Document included instructions to Kingspan staff to control the manner in which the relevant information was disseminated (including strict adherence to the scripted emails, which—it submitted—were entirely factual) and to ensure that Kingspan did not contravene any of its statutory obligations. It also provided for a gradual escalation process, culminating in litigation only if previous efforts to engage with Pirmax had been unsuccessful.
Kingspan submits that, prior to February 2019, it had spent several years “carefully examining and incurring costs of testing Pirmax’s product performance claims” in a “methodical and sophisticated” way. It submits that there is nothing improper about a business seeking to verify a competitor’s performance claims in that manner—nor is there anything improper in taking steps to ensure customers are made aware of that testing.
As to the fourth element of the tort, Kingspan submits that Pirmax had failed to prove that it had suffered any actual damage.
8.5 Consideration
Much of the analysis concerning Pirmax’s claims under the ACL is applicable also to its tortious claims. Each species of claim arises out of the same statements that Kingspan made; and Pirmax alleges that those statements were false in the same way for the purposes of each. That being so, the analysis that follows can be mercifully brief.
Pirmax’s tortious claim falls at the first hurdle. For the reasons already explored, the statements that it claims were false were, in fact, not false. That reality is fatal to the cause of action in tort.
As to the second element of the tort, for the reasons set out above (at [227]-[235]), I accept that the impugned statements were made by Kingspan. There can be no doubt that Kingspan published the relevant statements to third persons, including market participants and regulatory authorities.
None of them, though, was made maliciously. On the contrary, the evidence establishes that Kingspan’s concerns about the HR Panel Product were genuinely held, that it sought to verify those concerns through a series of tests on the HR Panel Product (conducted internally at Kingspan and by independent testing bodies, including the CSIRO, AWTA, and Exova), and that it repeatedly sought to engage with Pirmax about the results of that testing over an extended period, including via its solicitors.
Kingspan’s attempts to engage with Pirmax went largely ignored. Mr Lewinsohn gave evidence that he was “not answerable to Kingspan” and that Kingspan “[didn’t] deserve an explanation” regarding its concerns about the HR Panel Product. Further, in response to letters sent by Kingspan’s solicitors, Pirmax’s then solicitors gave what could fairly be described as bare denials, declined a proposal that the parties and their legal representatives meet on a without prejudice basis to discuss Kingspan’s concerns about the HR Panel Product (and the Kingspan Exova Report and the Barnett Report), and invited Kingspan to raise those concerns with the relevant regulatory authorities. It was only at that stage, almost three years after Mr Gibson and Mr Anderson first became concerned about Pirmax’s performance claims in respect of the HR Panel Product, that Project Shield and Sword was conceived (although, by that stage, Kingspan had been engaged in other forms of counter-marketing concerning the HR Panel Product for over two years).
The Project Shield and Sword Document set out in detail the manner in which Mr Gibson hoped that the strategy that he had devised would be executed. That document emphasised the need to “[r]emember our TPA training” and to “[p]lay the ball not the man”. It also established a “Controlled Document Protocol” by which the Kingspan Exova Report and the Barnett Report were required to be sent with the text of the First Scripted Email, and were only to be distributed to a limited number of approved recipients.
Against that background, it is difficult to see how Kingspan’s conduct might be said to have involved “an intent to injure [Pirmax] without just cause or excuse or by some indirect, dishonest or improper motive”, or that it involved a lack of good faith. It is not to the point that Kingspan, through its counter-marketing conduct, intended to recover lost market share—that reality, and Kingspan’s desire for a “level playing field” in the market for the supply of rigid foam insulation products, does not demonstrate the existence of malice.
Pirmax’s submissions to the effect that Kingspan knew the statements and representations it made (through its employees) were false, or showed reckless indifference as to their truth, is entirely at odds with the evidence—and, moreover, is predicated on the assumption that Pirmax was permitted to market the HR Panel Product in a “qualified manner” (that is, to claim group 1 classification for ceiling or soffit applications only, in reliance on a ceiling-only test), which it was not. Even had Kingspan’s statements been false, it is very plainly the case that they were made in the belief that they were true.
The fourth element of the tort was the subject of extensive evidence but it is not necessary to summarise it, nor make any findings about it. The tortious wrongdoing of which Pirmax claims to have been a victim simply did not occur.
It follows that Pirmax’s action in tort must fail.
PART 9: RELIEF
None of the causes of action that Pirmax here agitates is made out. There is, then, no occasion to consider any relief in connection with any of them. Subject to addressing the question of costs (to which I shall return momentarily), it will suffice to dismiss Pirmax’s originating application of 17 May 2019.
As to the notice of cross-claim, judgment should be entered in favour of Kingspan. I have accepted that the representations that Pirmax relevantly made about its HR Panel Product (above, [306]) and its ISO3 Product (above, [345]) were, in each case, made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL (above, [346]-[349]). It is, then, necessary to consider what, if any, relief ought to flow in consequence of those findings.
Two species of relief are sought. Kingspan seeks injunctive relief (both restrictive and mandatory) directed to:
(1)preventing Pirmax from continuing to make the representations that I accept have been made in contravention of the ACL; and
(2)requiring that it take steps to ensure that its distributors are informed that the various media through which they were made are not to be republished.
It also seeks declaratory relief to record the court’s findings that those representations were made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL.
As has been recorded, Kingspan does not seek relief in the nature of compensation or damages.
9.1 Preliminary observations
Two preliminary observations should be made.
The first concerns the terms in which the declaratory and injunctive relief for which Kingspan moves might be framed. No minute of proposed orders was provided; and the closest facsimile appears to be contained within Kingspan’s written closing submissions, which relevantly read:
Kingspan seeks permanent and mandatory injunctions pursuant to s 232 of the ACL in substantially the following terms:
(a)Pirmax be restrained from repeating or further publishing that the HR Panel Representations and the ISO3 Panel Representations; and
(b)Pirmax inform its distributors that its technical data sheets and brochures, its website and the test reports accessible on its website are not authorised by it to be re- published or otherwise used to make the HR Panel Representations and the ISO3 Panel Representations.
Likewise, the declaratory relief that Kingspan seeks has not been pitched at anything more than a conceptual level. Declarations are sought “…as to the alleged conduct constituting contraventions of ss 18, 29(1)(a) and (g) and 33 of the ACL.” Respectfully, those formulations of relief are not sufficiently precise and should be reduced to something more detailed.
The second observation concerns the delay that has attended the provision of these reasons. Since the conclusion of the trial, the standard three-year duration of NCC 2019 seems most likely to have ended and it is likely that that instrument has been replaced by a new version. That may or may not impact upon the appropriateness of injunctive relief or the terms in which appropriate relief might be framed.
What follows must be understood in that context.
9.2 Injunctive relief
Section 232 of the ACL relevantly reads as follows:
232 Injunctions
(1)A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a)a contravention of a provision of Chapter 2, 3 or 4; or
(b)attempting to contravene such a provision; or
(c)aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d)inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or
(e)being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f)conspiring with others to contravene such a provision.
(2)The court may grant the injunction on application by the regulator or any other person.
…
(4)The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:
(a)whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and
(b)whether or not the person has previously engaged in conduct of that kind; and
(c)whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.
…
(7)The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised:
(a)whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b)whether or not the person has previously refused or failed to do that act or thing; and
(c)whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.
It is readily to be seen that the court’s discretion to grant statutory injunctive relief is wide. It is unconstrained by matters that restrict the granting of equivalent relief in equity. It may, for example, be exercised even where there is no reason to apprehend that a respondent (or cross-respondent) might continue to act in contravention of the ACL: Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd [2020] FCA 1340, [86] (Katzmann J).
By its written closing submissions, Kingspan contended as follows:
Although the evidence does not reveal Pirmax to still make some of the representations (in particular by referring to Group 1 and AS 5637 for the HR Panel Products), that does not undermine the utility of the injunctions as sought. It continues to represent that the HR Panel Products and the ISO3 Panel Products comply with BCA 2016 and BCA 2019, and group classifications determined by AS 5637 remain applicable under that framework. Despite repeated requests from Kingspan’s solicitors, Pirmax has also not given any undertakings that it would not continue to make the representations.
The orders requiring Pirmax to instruct its distributors are necessary and appropriate because the business model of Pirmax utilises distributors to market its products on the basis of materials prepared by Pirmax with its authority. Although the injunction is mandatory in form, its substantive purpose is to enforce compliance with the prohibitory injunction.
(references omitted)
I accept those submissions. In the present case, I am satisfied that injunctive relief should issue to restrain Pirmax from further making the representations that I have found were made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL. Conceptually, such relief should, at a minimum, restrain Pirmax from making representations to the effect that:
(1)for the purposes of NCC 2016, its HR Panel Products attract (or attracted) a group 1 classification when tested in accordance with AS 5637.1;
(2)its HR Panel Products complied, or were considered to comply, with the deemed-to-satisfy requirements of the NCC 2016 for use in internal ceilings as an exposed or concealed soffit lining; and
(3)for the purposes of NCC 2019, its ISO3 Products attract (or attracted) a group 3 classification when tested in accordance with AS 5637.1 and AS ISO 9705:2003 (and are (or were), therefore, compliant with NCC 2019);
It is also appropriate, again at a conceptual level, to require by way of mandatory injunction that Pirmax take all reasonable steps to inform its distributors that the various media through which it made the representations that I have found were made in contravention of the ACL are no longer to be republished.
9.3 Declaratory relief
The court’s power to grant binding declarations of right is found in s 21 of the Federal Court of Australia Act 1976 (Cth). As with the court’s power to grant injunctive relief, the discretion there conferred is very wide. It should “…be exercised ‘sparingly,’ with ‘great care and jealousy,’ with ‘extreme caution,’ [and] with ‘the utmost caution’” and, at all events, with “…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”: Ibeneweka v Egbuna [1964] 1 WLR 219, 224-225 (Viscount Radcliffe, Guest and Upjohn LLJ); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (“Ainsworth”), 596 (Brennan J).
Declaratory relief will rarely, if ever, be appropriate unless it can be said that there is some utility to be realised by granting it: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ).
Such utility might be said to be lacking in circumstances where other relief is granted in respect of the conduct that is sought to be made the subject of a declaration: Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, 33 [98] (Gray J); Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, [45] (Collier J).
It is open to the court to grant declaratory relief that serves to record that identified conduct was engaged in in contravention of a statute: Australian Softwood Forests Pty Ltd v Attorney General (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121, 125 (Gibbs CJ), 136 (Mason J, with whom Stephen J agreed), 137 (Murphy J), 144-145 (Wilson J); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, 94, 98, 100-101 (Sheppard J), 106 (Foster J), 107, 110 (Hill J); Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309, 319 [35] (Sackville J); Justice Robert French, ‘Declarations – Homer Simpson’s remedy – is there anything they cannot do?’ [2007] FedJSchol 24, [50].
Declaratory relief should not, however, be granted merely as a means of recording a court’s conclusions: Warramunda Village Inc v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ).
Insofar as Pirmax’s conduct in making the representations that I have found were made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL is to be remedied by means of injunctive relief, I am not persuaded that the court should also make it the subject of declaratory relief. I do not consider that declarations allied to such injunctive relief would serve any purpose. On that front, Kingspan contended that declaratory relief would serve to record the court’s disapproval of Pirmax’s conduct. I am not persuaded that that is so; and certainly not anymore than is apparent in any event from these reasons.
That, though, presumes that injunctive relief should be granted. For reasons already identified, I have accepted that it should be, at least conceptually. As is addressed below, the extent to which—and the form in which—injunctive relief should follow is a matter about which the parties should provide further input. It is conceivable that, following receipt of that input, injunctive relief might be limited in some way or even abandoned altogether. In those circumstances, there might yet be some utility to be realised by a grant or grants of declaratory relief.
That being so, I am unwilling to do any more now than to indicate a conceptual reluctance to grant declaratory relief in respect of representations that are to be the subject of injunctions. Insofar as Pirmax is to be restrained from making representations of the kind that I accept were made in contravention of the ACL, no associated declaratory relief should be granted.
9.4 Relief to be granted
I identify above, at a conceptual level, the relief that I consider appropriate herein. In light of the observations made above (at [377]-[379]), it is appropriate at this juncture to refrain from propounding final relief so that the parties may confer and, if possible, agree on orders that reflect the findings contained herein. I will grant them 14 days (or such longer period as they might agree is necessary) to that end. Unless there is some reason not to, I will make orders as agreed.
If the parties cannot reach agreement on the terms of relief that reflects what is said above (particularly at [384], [385] and [393]), then they should each submit a minute of the final orders that they propose that the court should make, together with a very brief submission (of no more than three pages) as to why it best reflects the analysis in this part of these reasons. They should do so within 21 days. Absent some need for further hearing, I will make orders by way of final relief on the papers.
The orders to be proposed—by agreement or otherwise—should also address the question of costs. There does not presently appear to be any reason why standard orders shouldn’t be made: that is, orders requiring that Pirmax pay Kingspan’s costs of the application and cross-claim. The parties can indicate (by agreement or otherwise) whether any such reason exists in the orders that they propose as above.
I certify that the preceding three hundred and ninety-six (396) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 14 November 2022
- AGLC
- Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340
- Case
- [2022] FCA 1340
- Decision Date
CaseChat Overview and Summary
The court held that Kingspan's marketing campaign did not constitute misleading or deceptive conduct. The court found that the representations made by Kingspan were based on genuine beliefs and were not false. The court also concluded that the evidence presented by Pirmax's expert was admissible and held probative value. The court dismissed Pirmax's application and upheld Kingspan's cross-claim. The court ruled that Kingspan's representations were not misleading or deceptive, and Pirmax's counter-marketing campaign did not meet the threshold for misleading or deceptive conduct. The court found that Kingspan's actions did not constitute injurious falsehood, as the representations were genuinely held.
The court ordered that the originating application be dismissed and the cross-claim be upheld. The parties were required to confer and submit a minute of orders for final relief, including costs, within 14 days. If an agreement could not be reached, the parties had to submit their proposed orders and brief written submissions within 21 days. The court reserved the right to make further orders for final relief, including costs, as appropriate.
Orders
Orders of the court
1. On the originating application dated 17 May 2019, there be judgment for the respondent.
2. The originating application dated 17 May 2019 be dismissed.
3. On the notice of cross-claim dated 7 June 2019, there be judgment for the cross‑claimant.
4. Within 14 days of the date of these orders, the parties must confer and, if possible, agree upon and submit to the chambers of Justice Snaden a minute of orders for final relief (including costs) that reflect the court’s reasons for judgment herein.
5. In the event that no such agreement is possible, the parties each prepare and submit, within 21 days of these orders, a minute of orders for final relief (including costs) that they propose in reflection of the court’s reasons for judgment herein, together with brief written submissions (of no more than three pages) in support thereof.
6. Further orders for final relief (including costs, as appropriate) be made on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Annex G, in turn, provides as follows:NOTE 22Different specimen configurations are possible depending on the practical use of the product under test and the specific situation that is to be studied.G.1 Standard specimen configurationIn order to achieve comparable test data between laboratories, it is recommended that the walls (excluding the wall containing the doorway) and the ceiling are covered with the product. This is designated as the standard specimen configuration.G.2 Alternative specimen configurationOther possibilities are to test the product covering only the walls and having standard ceiling materials, or to test the product covering only the ceiling and having standard wall materials.The standard materials should then be chosen in accordance with 11.4.It is also possible to test combinations of different wall and ceiling products in order to evaluate specific scenarios. In short, although the “standard specimen configuration” for testing in accordance AS ISO 9705 involves the application of a test product to three walls and the ceiling of the test room, AS ISO 9705 also contemplates tests that involve the application of a test product only to the ceiling or only to the walls of the test room. That flexibility assumes some significance presently.2.4 NCC 2016 Although Section A of NCC 2016 contained some minor structural and terminological changes from NCC 2015, the compliance pathways there set out remained, in substance, unchanged. For present purposes, the compliance pathways set out in NCC 2016 were the same as those for which NCC 2015 provided: compliance was achieved by satisfying the Performance Requirements, which could, in turn, be satisfied by a Performance Solution (called an “Alternative Solution” in NCC 2015) or a Deemed-to-Satisfy Solution (being a solution that complied with the Deemed-to-Satisfy Provisions). As with NCC 2015, if a product complied with those provisions, it was deemed to comply with the Performance Requirements (and, therefore, the NCC). Like NCC 2015, Section C of NCC 2016 contained the Deemed-to-Satisfy Provisions that related to fire resistance. Clause C1.0 provided, relevantly, that:(a)Where a Deemed-to-Satisfy Solution is proposed, Performance Requirements CP1 to CP9 are satisfied by complying with—(i) C1.1 to C1.13… Clause C1.10 was in the same terms as in NCC 2015. Like its predecessor, it provided that the wall and ceiling linings in a Class 2 to 9 building must comply with Specification C1.10. Specification C1.10 in NCC 2016, however, required different testing to that mandated by its predecessor. It provided, relevantly:(a)A wall or ceiling lining system must comply with the group number specified in Table 3…(b)A group number of a wall or ceiling lining and the smoke growth rate index or average specific extinction area must be determined in accordance with AS 5637.1.(Emphasis added) Table 3 in Specification C1.10 of NCC 2016 was identical to its counterpart in NCC 2015. Accordingly, in order to comply with the Deemed-to-Satisfy Provisions of NCC 2016 relating to fire resistance, a wall or ceiling lining was still required to have a group number of 1, 2 or 3; but that group number must have been determined by testing undertaken in accordance with AS 5637.1.2.5 AS 5637.1