Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd - [2012] FCA 510

FEDERAL COURT OF AUSTRALIA
Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd
[2012] FCA 510

Citation: Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd [2012] FCA 510

Parties: PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 v PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629, TONY GREGORY PURDON and RALPH T MARTIN

File number: QUD 272 of 2009

Judge: GREENWOOD J

Date of judgment: 18 May 2012

Catchwords:
TRADE PRACTICES – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification – consideration of the extension provision, s 6(3) of the Trade Practices Act 1974 (Cth) as the applicable law at the material time – consideration of whether the material distributed by the third respondent containing the statements in suit, were statements made “in trade or commerce” – consideration of whether s 52 so far as that section purports to regulate conduct said to be misleading or deceptive in circumstances where the statements concern aspects of the legislative and regulatory environment governing the plumbing industry, engage the constitutional limitation or guarantee the subject of the decisions in Lange v Australian Broadcasting Corporation; Hogan v Hinch and Wotton v State of Queensland and related earlier authorities of the High Court (cited below) – consideration of whether, on the facts, the statements were representations or statements of opinion – consideration of whether the conduct of the third respondent in making the various statements was conduct in close association with the applicant’s principal rival

CONSUMER LAW – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification

STATUTES – consideration of the application of the cooperative arrangements for the legislative and regulatory arrangements governing the plumbing industry in Australia and New Zealand, by reference to the legislative instruments adopted in Queensland as emblematic of each jurisdiction’s legislation, including The Plumbing and Drainage Act 2002 (Qld); Standard Plumbing and Drainage Regulation 2003 (Qld); the provisions of the Plumbing Code of Australia 2004; and various Australian Standards and particularly Australian Technical Specification 5200.055:2008

Legislation: Trade Practices Act 1974 (Cth); s 52
Evidence Act 1995 (Cth); s 79

Cases cited: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 - cited
Houghton v Arms [2006] HCA 59 - cited
Taylor v Crossman (No. 2) [2012] FCAFC 11 - cited
Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104 - cited
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 – cited and quoted
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 - cited
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 - cited
Wotton v State of Queensland [2012] HCA 2; (2012) 285 ALR 1 – cited and quoted
Hogan v Hinch (2011) 243 CLR 506 - cited
Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc. (No. 2) (1993) 41 FCR 89 – cited

Date of hearing: 14 June 2011, 17, 18, 19, 20 April 2012

Date of last submissions: 20 April 2012

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 402

Counsel for the Applicant: Mr F Kunc SC and Mr C Johnstone on 14 June and 15 June 2011
Mr C Johnstone on 17, 18, 19 and 20 April 2012

Solicitor for the Applicant: Bennett & Philp Lawyers

Counsel for the First and Second Respondents: Mr D Atkinson on 14 June and 15 June 2011

Solicitors for the First and Second Respondents: DLA Piper Global Law Firm

Counsel for the Third Respondent: Mr N G Rochow SC and Mr G Coppola until 15 June 2011

Third Respondent appeared in person on 17, 18, 19 and 20 April 2012

Solicitors for the Third Respondent:
D’Angelo Kavanagh Barristers and Solicitors until 15 June 2011

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 272 of 2009

BETWEEN:
PLASTEC AUSTRALIA PTY LTD ACN 093 513 467
Applicant

AND:
PLUMBING SOLUTIONS AND SERVICES PTY LTD
ACN 128 873 629
First Respondent

TONY GREGORY PURDON
Second Respondent

RALPH T MARTIN
Third Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

18 MAY 2012

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Subject to Order 2, judgment be entered for the applicant with costs.
2.The applicant is directed to file and serve upon the third respondent within 10 days proposed minutes of orders concerning the terms of the declaration and injunctions sought by the applicant in the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 272 of 2009

BETWEEN:
PLASTEC AUSTRALIA PTY LTD ACN 093 513 467
Applicant

AND:
PLUMBING SOLUTIONS AND SERVICES PTY LTD
ACN 128 873 629
First Respondent

TONY GREGORY PURDON
Second Respondent

RALPH T MARTIN
Third Respondent

JUDGE:

GREENWOOD J

DATE:

18 MAY 2012

PLACE:

BRISBANE

REASONS FOR JUDGMENT
The proceedings – background and contentions

The applicant (“Plastec”) carries on the business of designing, manufacturing and selling plastic plumbing pipes and pipe fittings, that is, plastic plumbing products. It manufactures some of these products in Australia. It commissions the manufacture of others overseas and imports them into Australia. It wholesales its plastic plumbing products to approximately 1,200 account customers in Australia and New Zealand consisting of large plumbing retail chains as well as other smaller retailers of plumbing products. Those plumbing products are sold by retailers to plumbing contractors for installation in, put broadly, plumbing and drainage systems.
Plastec manufactures and sells a core range of approximately 300 to 400 different types of plumbing products which, taking into account individual variations within these products, constitutes a total range of products of between 900 and 1,200 products in all.
The vast majority of these products are manufactured from material described as Acrylonitrile-Butadiene-Styrene (“ABS”) or Acylonitrile-Styrene-Acylate (“ASA”) for installation in domestic and commercial applications in Australia. This case is concerned with four Plastec fittings manufactured from ABS or ASA generally described as “swivel and expansion joint fittings”. They are described as: Expansion Pipe Joiner, model number 15130; Expansion Pipe Joiner, model number 15642; Adjustable Swivel Pipe Joiner, model number 15132; and Adjustable Swivel Pipe Joiner, model number 15199. In the main, these four fittings are connected by plumbers to pipes made from a class of plastics materials called unplasticized Polyvinyl-Chloride (PVC-U), laid underground (for example, sewerage or waste water pipes), although they may also be laid above ground. The particular utility of these four fittings is that when joined to pipework laid underground, the fittings adjust to movement in soils that might be subject to either lateral or horizontal movement.
At the centre of the proceeding is Plastec’s contention that the third respondent, Mr Martin, the remaining respondent contesting the proceeding, engaged in misleading or deceptive conduct in trade or commerce in 2009 by distributing by electronic and postal communications a compilation of documents (the “Martin material”) very largely written by him (but for a Plastec advertising brochure included in the material) which contains 17 representations said by Plastec to be untrue.
It will be necessary in due course to set out in detail each of the representations contained in the Martin material. However, for present purposes, it is sufficient to say that the contended thrust of the material is to suggest that Plastec conducts its business, so far as the manufacture and sale of the swivel and expansion joint fittings are concerned (the “Plastec fittings”), in a way which fails to comply with the Plumbing Code of Australia 2004 (which has the force of law); fails to comply with applicable Australian Standards (which must be satisfied) governing the performance characteristics for the Plastec fittings; wrongly suggests that the Plastec fittings (made from ABS or ASA) can be joined to other plumbing pipes and fittings made from (PVC-U) by using a solvent cement called “Type N” solvent cement, rather than a mechanical coupling; and, among other representations, by illegally colluding with a body called Standards Australia and a certification entity called SAI Global (licensed under a national standards certification scheme) Plastec procured approvals for the Plastec fittings to which it was not entitled.
The Martin material is also said to suggest that the tests obtained by Plastec upon which its certifications for the Plastec fittings (certified to a particular Australian standard, namely, Australian Standard 2887 and an Australian Technical Specification described as ATS 5200.055) rest, were not obtained from an independent testing facility and thus the certifications cannot be relied upon, and further, Plastec has engaged in illegal conduct by representing that the Plastec fittings enjoy particular certifications when such certifications are said to have been improperly obtained.
The Martin material is said to further suggest that the Plastec fittings are defective; when installed in drainage systems they leak from the outset; “independent” tests show that the Plastec fittings do not meet the requirements of ATS 5200.055 to which they are certified; and, Plastec has supplied thousands of defective Plastec fittings in Australia and New Zealand.
Plastec contends that all of these representations are untrue and contends that Mr Martin’s conduct in making them contravenes s 52 of the Trade Practices Act 1974 (Cth) (as the applicable law at the time of the conduct) as the pleaded direct counter-factual for each representation is the true position, and the conduct occurred in trade or commerce.
Mr Martin does not deny distributing the Martin material.
It will be necessary in due course to explain the evolution and authorship of the Martin material. However, Mr Martin denies he has engaged in misleading or deceptive conduct, as the statements made in the Martin material must be understood, it is said, in the following context: Mr Martin says he is a retired experienced plumber; the statements made in the Martin material characterised by Plastec as representations are simply matters of opinion, not representations of fact; in expressing these opinions, as an individual, Mr Martin was not engaged in any aspect of trade or commerce; the opinions expressed were reasonably and genuinely held views expressed in good faith so as to bring to the attention of Regulators, Standards Australia, Certifying Bodies and Local Authorities (Councils) matters of importance to consumers and plumbers concerning the Plastec fittings, the long term fitness for purpose of the Plastec fittings and the conduct of Plastec, as Mr Martin perceived or understood those matters.
Mr Martin contends that consumers, the plumbing industry and participants engaged in the regulatory environment relating to the adoption of Australian Standards or Australian Technical Specifications concerning plumbing products and their manufacture and installation, suffer from information asymmetry and the distribution of the Martin material was intended by Mr Martin to address this asymmetrical position by providing independent and reliable information about the matters addressed in the Martin material.
Mr Martin also contends that the matters addressed in the Martin material are the subject of an implied immunity under the Commonwealth Constitution on the footing that the Martin material contains the expression of opinions or discussion directed to the role and conduct of the Commonwealth and the respective States; and role and conduct of instrumentalities and institutions responsible for the oversight and implementation of relevant laws; and, engages debate between citizens about political matters concerning the role and conduct of regulatory bodies and participants in determining whether particular plumbing products satisfy relevant standards.
In these proceedings, Mr Martin seeks to support these expressions of opinion by relying on two affidavits sworn by him in which he contends for a particular construction of the terms or requirements of particular Australian Standards; a view about the terms and requirements of ATS 5200.055; and the requirements of the national certification and regulatory arrangements established under joint arrangements applicable throughout Australia and New Zealand.
The particular statutory arrangements and regulatory environment will be explained later in these reasons.
In the affidavits sworn by Mr Martin or alternatively in the course of oral submissions, Mr Martin also seeks to support his view of the requirements for solvent cement bonding of fittings made from ABS or ASA to pipes or fittings made form PVC-U by reference to his understanding of the molecular bonding properties of these materials; the chemical properties of solvent cements; and the nature and scope of the tests he believes ought to have been undertaken in determining the “long term fitness for purpose” (in preventing leaks in the relevant systems) of joints made by joining the Plastec fittings made from ABS or ASA to pipes and fittings made from PVC-U.
In that sense, Mr Martin relies upon his own evidence and his own opinions to support his answer to each of Plastec’s complaints about each of the statements contained in the Martin material. Mr Martin calls no other evidence in support of his case. The affidavit evidence of the applicant on the various topics addressed by the deponents is unchallenged by any affidavit evidence from any person in support of Mr Martin’s case. Plastec objects to much of the opinion evidence of Mr Martin on the footing that Mr Martin is not a polymer chemist and cannot give expert opinion evidence about the molecular bonding properties of ABS or ASA to PVC-U in the course of particular jointing methodologies; nor, it is said, can he give expert opinion evidence concerning the chemical properties of solvent cements and particularly Type N solvent cement; and, nor, it is said, can Mr Martin give opinion evidence of the construction to be adopted of the terms or requirements of particular Australian standards or ATS 5200.055 as such matters involve questions of law.
Mr Martin can nevertheless, as a self-represented litigant, make submissions as to the construction to be adopted concerning the terms and requirements of particular Australian Standards or ATS 5200.055. However to the extent that Mr Martin’s submissions on that matter depend upon admissible evidence to make the submission good, the extent of the evidence called by Mr Martin is confined to only his own affidavits and his own opinions, to the extent that that evidence is admissible.
The objections to these aspects of Mr Martin’s affidavit evidence (and other objections) will be addressed in these reasons.
The allegations of collusion
By para 16(e) of the Second Further Amended Statement of Claim (“SFASC”), Plastec contends that, in that part of the Martin material known more generally as the “Purdon Report” (comprising the first 11 pages of the Martin material), Mr Martin represented at p 8 to each recipient of the Martin material that:
“Plastec has illegally colluded with SAI Global and/or Standards Australia with respect to obtaining approvals for the Plastec Fittings to which it is not entitled”.
By para 18(e) of the SFASC Plastec contends that the representation at para 16(e) is misleading or deceptive because Plastec has not so colluded. At para 18.3 of Mr Martin’s Second Further Amended Defence (“SFAD”), Mr Martin:
… admits that Plastec has not illegally colluded with SAI Global or Standards Australia with respect to obtaining approvals for the Plastec Fittings …
Notwithstanding that admission, Mr Martin has not offered an unconditional undertaking either together with his amended pleading or otherwise, not to represent to others that Plastec has so illegally colluded. That may be because Mr Martin more broadly contends that no conduct in contravention of s 52 arose (thus rendering the giving of an undertaking inappropriate) by reason of the matters set out at [10] to [12] of these reasons. Nevertheless, Mr Martin concedes that the underlying contention of illegal collusion between Plastec on the one hand, and SAI Global or Standards Australia, on the other hand, is groundless on the facts.
The composition of the Martin material
The Martin material distributed by Mr Martin on and after 22 September 2009 consisted of these documents (having regard to the examples at WC2 and WC3 to the affidavit of Mr William Casey sworn 10 November 2009 being Volume 2 Tab 6 of Exhibit 7): an 11 page letter described in the proceeding as the Purdon Report on the letterhead of Mr Purdon’s company, Plumbing Solutions & Services Pty Ltd, and bearing Mr Purdon’s name at the end and reciting his position as “Director”; a four page Plastec brochure entitled Plastec Innovative Plumbing Solutions/Swivel and Expansion Joints/Soil Movement Products; an earlier nine page letter written by Mr Martin dated 13 July 2009 addressed to Ms Krezo of Standards Australia, described by Mr Martin in the letter as a “paper” directed to the topics of:
Plumbing and Drainage – Industry Issues – Technical Standards/Specifications,
Plumbing Code of Australia & New Zealand
“A Defective Drainage Fitting”
- Possible Ramifications -
Test Report.
Mr Martin’s paper or letter of 13 July 2009 attached three Appendices described as A, B and C and those Appendices form part of the Martin material. Appendix A, written by Mr Martin, is directed to a 17 page discussion of a wide range of matters relating to ATS 5200.055 and the question of the connection of fittings made from ABS or ASA to pipe systems involving pipes made from PVC-U. Appendix B is a three page document written by Mr Martin directed to an introduction to a Hydrostatic Test Report conducted by the University of South Australia at the University’s Mawson Lakes Testing Facility. Appendix B concludes by attaching a copy of the University of South Australia’s Test Report described as a “TEST REPORT – Final” of March 2009 prepared by the Australian Irrigation Technology Centre (“AIT Centre”), a Centre within the Division of IT, Engineering and the Environment of the University of South Australia. The Report recites that it addresses the results of hydrostatic pressure tests for the purposes of “ATS 5200.055-2008 Clause 9.3 and modified test”, applied to five of Plastec’s swivel and expansion joint fittings and five fittings made from PVC-U by Plastec’s market rival, the Storm Plastics group of companies (comprising Storm Plastics (SA) Pty Ltd, Storm Plastics (Qld) Pty Ltd, Storm Plastics Admin Pty Ltd and Storm Plastics Drainage Division Pty Ltd).

The test report is signed by David Pezzaniti who is described as the Group Leader of the AIT Centre.
Appendix C to the Martin material is a photograph of test specimens of swivel joint assemblies with sections cut out in order to undertake tests of seals within the product described as elastomeric seals. That photograph although described as Appendix C in the Martin material relates to aspects of the test report undertaken by the AIT Centre attached to Appendix B.
The test report of the University of South Australia is admitted into evidence as part of the applicant’s evidence simply for the purpose of identifying the document as part of the Martin compilation of material forming part of the 58 pages of Martin material distributed by Mr Martin on and after 22 September 2009, and for the purpose of giving content and reference to observations made about the report by deponents. Although Mr Martin intended during the early part of the preparation of the proceeding for trial, to rely on the report at trial as an expert opinion concerning the matters addressed in it, Mr Martin has not put the report into evidence as an expert report and no affidavit from Mr Pezzaniti is adduced by Mr Martin in support of his defence for the purposes of s 79 of the Evidence Act 1995 (Cth). The report is not before the Court as proof of any matter contained in the report relevant to the proceeding.
As to the matters contended for by Mr Martin noted at [10]-[12] of the reasons, the applicant says this: Mr Martin is not simply a retired plumber agitating matters of opinion about Plastec or the Plastec fittings for the purpose of advancing the public interest or the interests of plumbers, consumers and regulators of plumbing products but rather, Mr Martin has agitated a campaign of attack upon Plastec and the Plastic fittings, for and on behalf of Plastec’s major rival, Storm Plastics; the statements made in the Martin material (the subject of the suit) are not opinions reasonably held by Mr Martin and nor were they expressed by him in good faith; the statements are incorrect and the representations of non-compliance with AS 2887 – not clarified earlier and ATS5200.055 were made in circumstances where Mr Martin had been told by Standards Australia and SAI Global, in writing, that both bodies were satisfied that Plastec fittings complied with the standard and the ATS; although Mr Martin elected to describe the Martin material as “independent” the truth is that Mr Martin largely wrote the Purdon Report and, using Mr Martin’s own description, “beefed up” the Purdon Report adversely to Plastec and then elected to incorporate the beefed up Purdon Report in the collection of Martin material distributed to the various addressees on and after 22 September 2009; the University of South Australia Test Report was not independent as it was written by Mr Martin, left out certain results favourable to the Plastec fittings, is not supported by any document describing or verifying the test data Mr Martin elected to put in the report, removed earlier draft references to Mr Elbe of Storm Plastics as the commissioning party so as to substitute Mr Martin as the apparent commissioning party, and was signed by Mr Pezzaniti as a report of the AIT Centre when the report was written, as Mr Martin explained and admitted in evidence, by Mr Martin.
Mr Martin’s role in the writing of the Report of the AIT Centre
As to the last matter, Mr Martin sought to offer in the witness box an explanation based on a conversation he had with Mr David Pezzaniti of why it became necessary for Mr Martin to write the University of South Australia Report. The evidence was inadmissible as Mr Martin sought to put the conversation into evidence as truth of the facts contained in the conversation. No affidavit from Mr Pezzaniti was put into evidence by Mr Martin to explain any relevant matter as to the authorship of the report. In any event, the matters Mr Martin wanted to explain to the Court based on his discussions with Mr Pezzaniti were just that, an explanation of why it was necessary for Mr Martin to write the report. The foundation fact not in issue according to Mr Martin’s oral evidence is that Mr Martin wrote the report of the University of South Australia issued out of the AIT Centre.
The contentions concerning Mr Martin and Storm Plastics
Plastec also contends that Mr Martin wrote letters for Storm Plastics and the extent or degree of engagement between Mr Martin and Storm Plastics as an interested beneficiary of Mr Martin’s agitations about the Plastec fittings or Plastec, can be seen, it is said, in the election by Storm Plastics to pay Mr Martin’s legal fees (invoices from solicitors and counsel) in excess of $400,000.00 in resisting the claims of Plastec. None of these fees were paid by Mr Martin. Mr Martin does not contend otherwise.
Plastec contends that at all material times Mr Martin was acting on behalf of Storm Plastics and whether his role is characterised as a consultant, agent, active participant or otherwise, the making of the representations on and after 22 September 2009 constituted conduct on the part of Mr Martin in the course of trade or commerce of Storm Plastics or, alternatively, the trade or commerce of Plastec itself as it was conduct on Mr Martin’s part directed to removing the Plastec fittings from sale in the market place, to the advantage of Storm Plastics, or in Mr Martin’s trade or commerce as an agent or provider of consultancy services.
The pleading of the various matters
These various contentions on Plastec’s part find the following expression in the pleading: in sending the Martin material to a range of addressees on and after 22 September 2009, Mr Martin adopted each of the representations in the Purdon Report as his own (para 21); in sending the Purdon Report to others, Mr Martin represented that the Purdon Report and the Martin material was or were an “independent and objective review” of the matters addressed in the Purdon Report and Martin material (para 21A) coupled with further representations that neither Mr Martin (nor Mr Purdon) had had a prior connection (personal, professional or financial) with any manufacturer of plastic swivel or expansion joints, and in particular, Storm Plastics or Plastec (para 21A(a)); that no manufacturer of such plumbing fittings had had any involvement in the preparation of the Purdon Report or the Martin material (pars 21A(b)); that Mr Martin had had no role in the University of South Australia Test Report other than to commission it, confirm instructions and make payment for it (pars 21A(c)); that Mr Purdon’s Report was prepared by Mr Purdon independently of any other person (para 21A(d)); and that Mr Martin (and Mr Purdon) was uninfluenced by actual bias against the products of Plastec in favour of those of Storm Plastics (para 21A(e)).
The particulars of these representations are said to be the reference to “independent review” at para 1.5, p 17 of the Martin material; the reference to “independent testing” at para 1.10, p 19 of the Martin material; the addressing of the University of South Australia Report to Mr Martin as “consultant”; Mr Martin’s description of the Purdon Report in an email addressed to government and other officials dated 29 September 2009 as “a report dated 22 September 2009, with an appendage, has recently come to hand”; the reference to “a comprehensive paper and report” in Mr Martin’s letter dated 25 October 2009 to the Chairman of the Association of Accredited Certified Bodies (and sent by email on 26 October 2009 to other bodies by Mr Martin); and the statements contained in the Purdon Report.
As to the representations pleaded at paras 21A(a) to (e), Plastec contends that Mr Martin enjoyed a prior personal friendship with Mr Bennett (the Principal of Storm Plastics) and through Mr Bennett a professional or financial connection with Storm Plastics; the University of South Australia Report was prepared for the benefit of Storm Plastics and the Plastec fittings, subjected to tests at the University, were obtained by Storm Plastics not by the University as the testing centre; Mr Martin had a major role to play in requesting modified tests to be undertaken, and in writing the report; the representations in the Purdon Report as “beefed up” by Mr Martin reflect actual bias against the Plastec fittings in favour of the Storm Plastics fittings; and the report of the University as written and distributed by Mr Martin reflected some tests required by Mr Martin (rather than the relevant Australian Standard or ATS) which Mr Martin knew and understood the plastic fittings could not pass, and omitted to report testing (the Liquid Infiltration Test) which the Plastec fittings had passed.
Plastec pleads that to the extent that any of the pleaded representations in the Martin material were expressions of opinion, the opinions purported to be those of an expert; they carried with the opinions, representations that the opinions were based on reasonable grounds, were honestly held upon rational grounds, and were independent and objective opinions in relation to the matters addressed in the material; and, the opinions in fact were neither based on reasonable grounds, nor were they honestly held upon rational grounds involving an application of relevant expertise, and nor were they independent and objective opinions in relation to the matters addressed in the Martin material.
No evidence called by Mr Martin of failures in the Plastec fittings
Finally, as to Mr Martin’s contention that the Plastec fittings are defective and leak from the outset when installed in drainage systems and that Plastec has supplied thousands of defective Plastec fittings in Australia and New Zealand, Plastec observes that Mr Martin, after some years of preparation of his case, has not called any evidence of any failure in the fittings in any installation, from a plumber or any other person, notwithstanding that the evidence reveals that Plastec has sold between 50,000 and 60,000 swivel joints and approximately 200,000 expansion joints for installation in plumbing systems relevant to the proceedings.
The solicitors and counsel ceasing to act for Mr Martin
The trial of the action commenced on 14 June 2011. At that time the first and second respondents, Mr Purdon and his company Plumbing Solutions & Services Pty Ltd, were represented by Mr Atkinson of counsel. Mr Martin was represented by Mr Rochow SC and Mr Coppola of counsel. At the conclusion of the first day, discussions between the legal advisers to the applicant and the legal advisers for the first and second respondents resulted in a settlement of the proceedings against the first and second respondents. The proceedings did not settle against Mr Martin. The solicitors and counsel who had appeared for Mr Martin withdrew. Mr Martin thereafter represented his own interests and upon the trial of the action against Mr Martin commencing on 17 April 2012 Mr Johnstone continued to represent the applicant and Mr Martin appeared in person.
The authorship and evolution of the Purdon Report
On 25 July 2011 Mr Martin wrote a letter to the solicitors for the applicant explaining the origin of the document described as the Purdon Report. The authorship of that document evolved in this way.
On a date that Mr Martin cannot recall, Mr Purdon sent a draft of a document bearing the date 13 September 2009 and addressed “To whom it may concern”, under the reference “Subject: Joint Methods of ABS fittings to PVC piping and WaterMark Certificate #WMKT00239” to Mr Martin.
On 20 September 2009 Mr Martin sent an email to Mr Purdon in which he said this:
… I’ve given your document a thorough read over and consider the points raised worthy of “beefing up”.
In consequence it may look entirely new to you.
However if you are not satisfied with it please amend if necessary, date/page etc and resend it with the Plastec brochure
- I’ll then forward it to those I sent my paper.
[emphasis added]
That email attached the beefed up, that is to say, amended Purdon Report, amended by Mr Martin. Mr Martin accepted in evidence that he had drafted the amendments to the document.
In Mr Martin’s letter to the solicitors for the applicant of 25 July 2011, Mr Martin attached a copy of Mr Purdon’s original letter dated 13 September 2009 (marked A) and a copy of Mr Martin’s email of 20 September 2009 and the version of Mr Purdon’s letter beefed up by Mr Martin (marked B). Mr Martin also attached (marked C) a copy of Mr Purdon’s email of 23 September 2009 by which Mr Purdon sent Mr Martin a further and final version of the Purdon Report which bore the date 22 September 2009. In addition, Mr Martin attached (marked D), a version of Mr Purdon’s final letter dated 22 September 2009 with underlining made by Mr Martin so as to show the text initially written by Mr Purdon. Mr Martin says that the areas of text in the document marked D where there is no underlining represent the additions made by him. In the letter to the applicant’s solicitors dated 25 July 2011 (Exhibit 22), Mr Martin describes it in this way:
The underline markings in the attached “Report” [earlier described in the letter by Mr Martin as the “so called Purdon Report”] define exact or like words as used, and in the general order presented in the letter received from Mr Purdon dated 13/9/2009. … Of importance to this response is that in most instances, although the text in the Report may appear entirely different from that presented in Mr Purdon’s letter, the intent of the reformatted content is the same, only it may have been altered to portray more comprehensively, information on the topic and or more technical input. Areas of text where there is no underlining are obviously additions, the points of which were topics of discussion prior to Mr Purdon sending me a copy of the letter.
In making the amendments of 20 September 2009 to Mr Purdon’s draft, Mr Martin gave evidence (as he had said in that part of the letter quoted above) that he did not change the “intent” of Mr Purdon’s letter. Mr Martin accepted that the version amended by him contained an observation in these terms which was not in Mr Purdon’s draft:
It is alleged that their [there] may be some collusion/confidential agreement pending between SAI Global and Plastec to embrace such matters [that is, product certification for the Plastec fittings according to ATS 5200.055]
[the emphasis in bold is the emphasis in the letter]
Mr Martin accepted that after the words, “Plastec swivel and expansion joints are fully WaterMark approved (ATS 5200.055)”, which were in Mr Purdon’s draft, Mr Martin added:
An untruth and misleading statement according to the investigations conducted.
Mr Martin thought that each of those additions may have derived from a conversation he had with Mr Purdon. Nevertheless, Mr Martin accepted that those assertions were not part of Mr Purdon’s formulation of the draft letter. Each addition was also recited in the final version of the letter. Mr Martin accepted that he did not have any issue with those observations being recited in the document and that he had no issue, subsequently, in attaching the document to other documents and circulating it widely.
A comparison of Mr Purdon’s draft letter with Mr Martin’s version as amended so as to beef up Mr Purdon’s draft shows that Mr Martin injected a significant degree of authorship into the formulation of the “Purdon Report”. A further comparison of those documents with the final version of the Purdon Report as sent to Mr Martin by Mr Purdon on 23 September 2009 shows that Mr Martin’s amendments were carried through into the final version. Mr Martin then attached that final version of the Purdon letter to the documents he distributed comprising the Martin material.
I find that Mr Martin was a significant author of the “Purdon Report” in its final form bearing the date 22 September 2009. I find that Mr Martin read and understood Mr Purdon’s draft of the document, amended the document significantly such that he became a joint author of it, and then adopted the content of the final version of the “Purdon Report” for the purpose of attaching it to the other documents comprising the Martin material for wide distribution. Before examining the detail of that distribution, the precise content of the statements made in the Martin material and the contextual chronology of Mr Martin’s dealings with Storm Plastics concerning that material and his correspondence with Standards Australia and South Australia Water Corporation and others, it is necessary to set out the applicable legislative and regulatory environment and the steps taken by Plastec within that environment.
The Legislative and Regulatory Environment
The legislative and regulatory environment of relevance to these proceedings is not a national regulatory environment in the sense that it derives from Commonwealth legislation or a co-operative scheme adopted under the forum of the Council of Australian Governments. However, the scheme is national in the sense that each State and Territory jurisdiction (including New Zealand) in a collaborative way has adopted legislation which is essentially in the same terms and each jurisdiction is guided by a body described as the National Plumbing Regulators Forum (the “NPRF”).
The particular legislative environment will be examined in the context of the Queensland instruments.
The Plumbing and Draining Act 2002 (Qld) (the “Act”) provides by s 145 that the Governor-in-Council may make regulations under the Act and by s 145(2) a regulation may be made called the Standard Plumbing and Drainage Regulation about any of the following work, or for inspecting such work: (a) plumbing and drainage work; (b) on-site sewerage work. Plumbing work is defined in the Dictionary to the Act to include installing, changing, extending, disconnecting, taking away and maintaining plumbing. Plumbing means, for water, an apparatus, fitting or pipe for supplying water to premises from a service provider’s infrastructure or a water storage tank and for carrying water within premises. For sewerage, it means an apparatus, fitting, fixture or pipe above ground, that carries sewerage on premises to drainage. It also means a greywater treatment plant or greywater diversion device.
Drainage work includes installing, changing, extending, disconnecting, taking away and maintaining drainage. Drainage means an apparatus, fitting or pipe, either above or below ground level that carries sewerage to a sewer, or to, within or from, an on-site facility, or greywater from a greywater treatment plant or greywater diversion device. Drainage also is defined to mean an on-site sewerage treatment plant.
Standard Plumbing and Drainage Regulation 2003 (Qld) (the “Regulation”) was adopted pursuant to s 145(2) of the Act. For the purposes of these proceedings the Regulation in force on 11 September 2009 is the relevant form of the Regulation. Part 2 of the regulation deals with the topic of “Compliance with particular codes and standards” and s 8A(1) provides that plumbing and drainage work “must comply with the PCA, sections A, B …, C and G.” [emphasis added] “PCA” means the Plumbing Code of Australia which term is defined to mean “the document in force from time to time called ‘Plumbing Code of Australia’ produced for all State governments by the National Plumbing Regulators Forum”. Clause 8A(3) of the Regulation provides that plumbing and drainage work complies with the PCA “only if the work satisfies the relevant performance requirements under the PCA”.
Section 8A(4) explains how compliance with the relevant performance requirements under the PCA can be achieved. It provides:
Compliance with the relevant performance requirements under the PCA can be achieved only by –
(a)complying with the relevant deemed-to-satisfy provisions under the PCA; or
(b) formulating an alternative solution under the PCA that –
(i)complies with the performance requirements; and
(ii)is shown to be at least equivalent to the relevant deemed-to-satisfy provisions under the PCA; or
(c) a combination of paragraphs (a) and (b).

It follows that plumbing and drainage work must comply with the relevant sections of the PCA and it will do so only if the work satisfies the relevant performance requirements of the PCA. Compliance with those performance requirements can be achieved only in one of three ways, either by satisfying the deemed-to-satisfy provisions, or by formulating an alternative solution that satisfies the performance requirements and is shown to be at least equivalent to the deemed-to-satisfy requirements, or by the combination of both.
The relevant version of the PCA for the purposes of these proceedings is the Plumbing Code of Australia 2004 (the “PCA”). The PCA recites that it is produced by the NPRF on behalf of each State and Territory government. The PCA recites that the NPRF is a National Policy Advisory Body with responsibility for the policy direction relating to technical matters associated with the PCA and derives from a co-operative arrangement between jurisdictions although it exercises no executive powers. As mentioned, s 8A(1) of the Regulation makes reference to mandatory compliance with sections A, B, C and G of the PCA for plumbing and drainage work.
Clause A0.2(a) of the PCA recites that sections B to F of the PCA contain the technical Performance Requirements for the design, construction, installation, replacement, repair, alteration and maintenance of water services, sanitary plumbing and drainage systems, stormwater drainage systems, heating, ventilation and air conditioning systems, and on-site waste water management systems.
Clause AO.2(b) recites that section G of the PCA contains the procedures for certification of plumbing and drainage products for authorised use in new installations, alterations, additions, replacement and repairs to existing installations.
Clause A0.4 provides that a plumbing solution will comply with the PCA if that solution satisfies the performance requirements. Clause A0.5 of the PCA provides that compliance with the performance requirements can only be achieved by complying with the deemed-to-satisfy provisions or by formulating an alternative solution which otherwise complies with the performance requirements or is shown to be at least equivalent to the deemed-to-satisfy provisions, or involves a combination of the two methods. Clause A0.5 probably contains a typographical error in using the word “or” as indicated in bold above. Clause A0.5(b) almost certainly was intended to use the word “and” reflecting the formulation in cl 8A(4)(b) of the Regulation.
Clause A0.7 provides that a plumbing solution which complies with the deemed-to-satisfy provisions, is deemed to comply with the performance requirements of the PCA for that solution.
Clause A1.1 contains a number of definitions. A deemed-to-satisfy provision means a provision which is deemed by operation of the PCA to satisfy the performance requirements of the PCA. A performance requirement means a requirement which states the level of performance which a plumbing solution must meet. A plumbing or drainage solution is defined to mean a solution which complies with the performance requirements of the PCA and is either a solution which complies with the deemed-to-satisfy provisions or complies with an alternative solution, or is a combination of both. An alternative solution means a plumbing solution which complies with the performance requirements other than by reason of satisfying the deemed-to-satisfy provisions. Drainage means any sanitary, liquid trade waste drainage or stormwater drainage system. Plumbing means any water plumbing, roof plumbing or sanitary plumbing system.
Some other definitions in Part A1 of the PCA might conveniently be now noted. Section G of the PCA, as already noted, contains the procedures for certification of plumbing and drainage products for authorised use in installations. A certification mark is defined to mean a WaterMark which is a trademark owned by an entity described as Standards Australia International Limited. Certain bodies described as conformity assessment bodies are authorised to conduct assessments leading to product certification. A Conformity Assessment Body (CAB) is defined to mean “an organisation registered with and approved by JAS-ANZ to conduct assessments leading to product certification and contracted with Standards Australia International to issue the WaterMark licence”. JAZ-ANZ means the “Joint Accreditation System of Australia and New Zealand”. Licence means:
… a formal document which covers the use of the WaterMark certification mark owned by Standards Australia and administered by the NPRF. It is granted to manufacturers whose materials or products are manufactured under a Quality Assurance Program endorsed by a CAB.
These proceedings concern, in part at least, references to an Australian Technical Specification. Specification is defined in these terms:
Specification means a specification that is approved by the NPRF through WS-031 and WS-014 as applicable to the material or product being submitted for authorisation. A specification may be an Australian Standard or specification listed in AS 5200 or a specification prepared by a CAB and manufacturer and is in a generic product Standard format, called an Australian Technical Specification (ATS).
That definition refers to WS-014 and WS-031. Each reference is a description of a Standards Australia, Standards New Zealand, Joint Technical Committee. The first deals with matters of “plumbing and drainage” and the second deals with “technical procedures for plumbing and drainage products authorisation” (cl A1.1).
It follows that for the purposes of the PCA, a specification is a document, by that description, approved by NPRF through the technical committees, applicable to material or a product submitted for authorisation and the instrument by which that question is determined may be an Australian Standard or a specification falling within AS 5200 or, alternatively, a specification prepared by a Conformity Assessment Body (“CAB”) and a manufacturer of that product, and is in a generic product standard format called an ATS.
I have already mentioned cl A0.7 which provides that a plumbing solution which complies with the deemed-to-satisfy provisions is deemed to comply with the performance requirements. Clause A1.3 of the PCA provides that a reference in a deemed-to-satisfy provision to a document under A1.2 of the PCA refers to the edition or issue together with any amendment listed in Table A1.3 and only so much as is relevant in the context in which the document is quoted. Table A1.3 sets out a Schedule of reference documents and one of them is a Standard described as AS/NZS 3500, 1998 which refers to “Plumbing and Drainage” and more particularly, in Part 2, 2003, “Sanitary plumbing and drainage”.
As mentioned, cl A0.7 brings about deemed compliance with the performance requirements of the PCA if a plumbing solution complies with the deemed-to-satisfy provisions. Consistent with cl A0.5, performance requirements might also be met through an alternative solution. That alternative solution must be assessed according to the assessment methods set out in A0.9. Clauses A07 and A08 deal with the two methodologies and cl A09 sets out the “assessment methods” (individually or in combination) to be used to determine that a plumbing solution complies with the performance requirements. Clause A0.9(a) contemplates an assessment by reference to evidence “to support that the use of a material or product, the design or form of construction meets a Performance Requirement or a Deemed-To-Satisfy provision as described in A2.2”. Clause A2.2 falls within Part A2 which addresses the topic of “Acceptance of Design and Construction”. Clause A2.1 describes eight categories of materials and products which are required to meet suitability requirements. Clause A2.2 addresses the topic of “Evidence of Suitability” and provides that “evidence to support that the use of a material, product, the design, form of construction or installation meets a Performance Requirement or a Deemed-to-Satisfy Provision” may be in the form of one or more of five possibilities under A2.2(a). The first two involve evidence of a certification mark for the relevant product and/or a current licence issued within the requirements of Part G of the PCA.
Part G1 of the PCA addresses “certification and authorisation”. It applies to all plumbing and drainage materials and products that are required to be authorised under Part A2 of the PCA. Clause G1.2 recites that product authorisation is achieved through the application of the certification mark in accordance with the rules of the WaterMark Certification Scheme (WMCS) and, in consequence, the listing of the material or product on the WaterMark product database. Clause G1.4 is in these terms:
A material or product that has the certification mark and is listed on the WaterMark Product Database is recognised by authorities having jurisdiction as being authorised for use in a plumbing or drainage installation.
[emphasis added]
The Certification Process is set out at cl G1.5. Clause G1.5 recites that the certification process ensures that materials or products are manufactured in compliance with the relevant specification and in compliance with the requirements of the WMCS. Clause G1.5.2 provides that the materials and products listed in Table A2.1 must be certified at the minimum certification level nominated in the Table. It is common ground that the Plastec fittings required certification in accordance with Part G of the PCA.
Certification is addressed at cl G1.5.4 of the PCA which is relevantly in these terms:
G1.5.4 CERTIFICATION
G1.5.4.1 Certification Mark
The WaterMark is issued by a CAB subject to material or product compliance with the relevant specification and the terms and conditions in the certification licence agreed to between the CAB and the Approved User.
Accordingly CAB’s undertake assessments to determine whether a particular plumbing or drainage solution complies with the performance requirements of a specification as defined, which may engage an assessment against an Australian Standard or an Australian Technical Specification, for the purposes of A1.1 of the PCA. That assessment might result in a WaterMark Certification coupled with a licence for the purposes of Part G of the PCA.
There is another mechanism by which a party might engage with the PCA and propose a plumbing solution that meets the performance requirements of the Code. Aspects of that engagement involve demonstrating an alternative solution that complies with the performance requirements of the PCA and is equivalent to the deemed-to-satisfy provisions. I do not propose to examine the detail of that aspect of the legislative scheme. Some aspects of the definitions that apply to the alternative path (but not all definitions) have been already addressed. However, the present proceedings concern contentions by Mr Martin about the efficacy, utility and appropriateness of the certifications Plastec obtained for the Plastic fittings under the legislative and regulatory environment already described.
The practical effect of the legislative and regulatory scheme as described ultimately reduces to the following propositions.
First, if someone (a proponent) proposes to introduce into the market a product or material that must be certified at a minimum level by reference to a particular Australian Standard or Australian Technical Specification, the proponent will apply to a CAB and seek to demonstrate that a proposed plumbing or drainage solution satisfies the relevant performance requirements of the PCA as the solution complies with the deemed-to-satisfy provisions of the PCA.
Second, if a CAB is so satisfied according to the assessment methods described in the PCA (particularly having regard to Part A2 and Part G), the CAB might so certify. A licence might be granted in compliance with Part G of the PCA.
Third, a product or material might achieve product authorisation entitling the proponent to apply a certification mark in accordance with the WMCS with the result that any product or material that has such a certification mark and is listed on the WaterMark Product Database is recognised by authorities as authorised for use in a plumbing or drainage installation.
Fourth, once a CAB certifies the proponent’s product or material as compliant with the relevant Australian Standard or ATS, and authorises or grants the proponent a licence to use the WaterMark certification mark, the product or material is deemed to comply with the performance requirements of the PCA and thus the Regulation, cl 8A. Because the product or material then complies with the PCA, the Regulation and the Act, the proponent may lawfully supply the product or material for use in a plumbing installation, and users of the product or material may rely upon the certification by the CAB to the relevant Australian Standard or ATS, and particularly the use of the certification mark, as evidence of the product’s compliance or the material’s compliance with the relevant performance requirements of the PCA.
The steps taken by Plastec within the legislative and regulatory environment concerning the Plastec fittings
Mr Sidney Hawthorne is a Director of Plastec.
Mr Hawthorne has been actively involved in the company’s affairs from its incorporation. He was also involved in the business affairs of the same undertaking conducted by Plastec’s predecessor entity. The undertaking has been conducted for approximately 17 years in all. Mr Hawthorne commenced the business in 1992 through the vehicle of a company also called Plastec Australia Pty Ltd which Mr Hawthorne describes as the original Plastec company.
In 2000 that company changed its name to STD Australia Pty Ltd. The applicant was then incorporated and took a transfer of the name Plastec Australia Pty Ltd. The present applicant is an entirely different entity from the original Plastec entity. These changes occurred in 2000 as a legacy of settlement arrangements arising out of Mr Hawthorne’s divorce from his then wife. As a consequence of those arrangements, the new entity was incorporated to assume and conduct the former business undertaking. The business of making and selling plumbing products now conducted by Plastec is a continuation of the business commenced by Mr Hawthorne in 1992.
Mr Hawthorne gives evidence that he was engaged in the steps taken by Plastec and its predecessor to obtain certification of products to the relevant Australian Standard and obtain WaterMark certificates of approval commencing in 1996. He says that the business undertaking first began the process of obtaining such certifications and approvals for its plumbing products in that year. He has remained engaged in that process throughout. At para 19 of Mr Hawthorne’s affidavit sworn 22 February 2011 (Vol 4, Tab 15, Exhibit 7) Mr Hawthorne says that the Plastec joint fittings the subject of this proceeding were WaterMark certified to Australian Standard 2887 in 1996.
At paras 36 and 37, Mr Hawthorne explains that matter a little further.
Mr Hawthorne says that Plastec has been making and selling plumbing fittings made from ABS or ASA for joining to PVC-U since March 1996 and that it has been making and selling plumbing fittings made from ABS and ASA for installation in underground drainage systems that may be connected to existing drainage systems using PVC-U piping or fittings since 1997. Mr Hawthorne says that Plastec has obtained WaterMark certification for plumbing products including its swivel and expansion joints. In support of that proposition, Mr Hawthorne annexes (SH-34) a WaterMark Certification Schedule drawn from the database of a CAB described as Australian Certification Services Pty Ltd (ACSPL), and makes reference to three other documents (SH-15, SH-16 and SH-17) being annexures to Mr Hawthorne’s affidavit sworn 4 November 2009 (Vol 4, Tab 13, Exhibit 7).
Those four documents reveal these matters.
The WaterMark Certifications
A search undertaken on 2 November 2009 of the database of WaterMark Certifications listed on the database of a CAB described as SAI Global reveals that Plastec’s adjustable swivel pipe joiner and its expansion pipe joiner components are WaterMark approved under Licence Number WMKT00239. The original certification is described as having been obtained on 3 December 1996 with the most recent certification or current certification dating from 17 July 2007. The expiry date of the licence is recorded as 16 July 2010. The products are recorded as certified to an Australian Technical Specification 5200.040-2005 described as “Technical Specification for plumbing and drainage products – Waste pipe connection outlets and gratings, separate or integrated” and, more particularly, Australian Standard “AS2887:1993 Plastics waste fittings” (SH-17).
SH-15 is a Certificate of Conformity issued by Australian Certification Services Pty Ltd to Plastec by which ACSPL “grants to the WaterMark User: [Plastec] the right to use the WaterMark as shown above (the logo) in conjunction with the Certificate No. [23003] on product/s as identified in the WaterMark Schedule and as listed on the WaterMark database [website described] which have been shown to comply with the relevant Standard/s and level of certification referred to below”. The Certificate recites that the WaterMark user is granted a licence to use the WaterMark subject to the rules governing the use of the WaterMark. The issue date is 17 April 2009 and the expiry date is 16 April 2014. The relevant particulars endorsed on the certificate are these:
Product Type: Fittings
Evaluated to: ATS5200.055:2008 Technical specifications for plumbing and drainage products Part 055:Plastics fittings – Connectors with flexible intermediate joints for drainage and sewerage applications
Level of Certification: WaterMark Level 1
The WaterMark Certification Schedule related to SH-15 is the document at SH-16 which identifies the four Plastec fittings the subject of the proceeding as the products so certified by ACSPL to ATS5200.055:2008.
SH-34 is a copy of a WaterMark Certification Schedule dated 20 August 2010 issued by ACSPL setting out the certification of the Plastec fittings to AS 2887:1993, ATS5200.040:2005 and AS/NZS1260:2009 (PVC pipes and fittings for drain waste and vent application). Certificate No 239 relating to the Plastec fittings was initially issued on 9 June 2009, and the certificate records an expiry date of 23 December 2015. Certificate No 23003 issued by ACSPL on 17 April 2009 certified the Plastec fittings to ATS5200.055:2008 and records an expiry date of 16 April 2014.
Mr Casey’s role
Mr William Casey is the National Sales and Marketing Manager for Plastec. Mr Casey also had a role to play in the certification process. He explains that at the time that the Plastec fittings were being developed, SAI Global was the body Plastec consulted about compliance issues for its products with relevant Australian Standards. SAI Global advised Plastec that the Standard applicable to the Plastec fittings was Australian Standard AS 2887:1993. As a result Plastec, through SAI Global as a CAB, applied for certification that the Plastec fittings conformed to that Standard. Certification was subsequently obtained from SAI Global and Mr Casey notes SH-17 to Mr Hawthorne’s affidavit. In addition, Mr Casey annexes as (WC-10) to his affidavit sworn 19 March 2010 (Vol 2, Tab 7, Exhibit 7) a letter from SAI Global dated 17 October 2007 (from Mr Robin Richards, Assurance Services, SAI Global) to Plastec in these terms:
This is to confirm that SAI Global has recently included your new swivel joint and telescopic ABS fittings in your Water Mark licence no. WMKA0239 to AS2887.
This was based on comprehensive laboratory testing performed to standards relevant to their installation and use.
Mr Greig, AS 2887 and ATS5200.055:2008

Mr Paul Greig gave the following evidence.
Mr Greig is the General Manager of ACSPL. He holds a BSc (Hons) in ceramic engineering. He has held the position of General Manager of ACSPL since November 2007 and from January 2008 Mr Greig was responsible within ACSPL for providing and managing a range of technical co-ordination services to clients in the plumbing industry. From March 1992 to November 2007 he held the position of Project Co-ordinator-Plumbing/General Manager-Product Certification/Group manager-Water/Gas-Product Certification for SAI Global and entities described as QAS Pty Ltd and SAQAS Pty Ltd.
Mr Greig is very experienced in these fields of technical compliance and the management of compliance and certification activities.
Mr Greig explains that ACSPL is accredited to provide certification services as to whether plumbing products comply with Australian Standards and Australian Technical Specifications enabling a user to obtain the right to apply the WaterMark Certification to products, in accordance with the Joint Accreditation System of Australia and New Zealand by the body known as JAS-ANZ. An entity seeking to provide certification services must also obtain an approval from Standards Australia. ACSPL has that approval.
From March 1992 to November 2007 Mr Greig held a variety of senior positions with the three companies mentioned above. QASPL and SAQSPL were operated as divisions of Standards Australia and provided certification services for a range of products including plumbing products. SAI Global also formed part of Standards Australia. Mr Greig says that a few years ago Standards Australia elected to establish certification services as a separate and independent activity with the result that SAI Global was separated as a stand-alone or independent company. It continues to offer the same sort of certification and accreditation services as previously offered.
SAI Global is considered by industry to be the peak product certification body in Australia as were the predecessor entities or divisions of Standards Australia. These services have been conducted for approximately 50 years.
So far as the plumbing industry is concerned, Standards Australia develops and SAI Global publishes particular Standards for plumbing products. Standards Australia develops Standards using a consensus model in which participants of many kinds in the plumbing industry can make submissions to Standards Australia about developing new Standards, variations to Standards or the replacement of existing Standards. Standards Australia is assisted by technical committees which are usually comprised of representatives of plumbing industry participants which Mr Greig describes generally as “stakeholders”. Draft Standards are prepared and circulated amongst stakeholders by the committees for comment and amendment. Ultimately once the consensus process has been undertaken and Standards have been drafted and approved in final form, Standards Australia will publish a Standard for a particular plumbing product or group of plumbing products.
The certification process for plumbing products is known as the WaterMark Certification Scheme, already described as WMCS.
Under the WMCS a CAB such as ACSPL can be requested by a plumbing manufacturer to examine and test the manufacturer’s particular product or a group of products to determine whether or not those products comply with a Standard relevant to those products. If that examination and testing reveals that the products comply, a CAB has authority to issue a WaterMark Certificate which certifies that the relevant product (or group of products) complies with a Standard nominated in the certificate. If a WaterMark Certificate issues, the manufacturer is licensed to state on the certified product that the product is WaterMark certified, with a reference to the Standard to which the certification applies. The licence to apply the WaterMark certification to the product is designed to give a plumber who proposes to install the product in a particular system assurance that the product is certified to the relevant standard and that in using it the plumber can be confident that the product complies with the relevant performance requirements required by the Standard.
Mr Greig says that over the last 18 years in which he has been engaged in the certification profession, he has acquired a detailed knowledge of Standards relevant to the plumbing industry.
Mr Greig says that he knows from his employment with SAI Global that SAI Global issued a WaterMark Certificate for the Plastec fittings certifying them as compliant with AS2887:1993, in approximately mid-2007. Mr Greig took part in the review process and was consulted concerning the certification application in his role as the Technical Manager of SAI Global. Mr Greig says that at the time WaterMark Certification was granted by SAI Global for the Plastec fittings to AS2887:1993, that Standard was considered to be the most relevant Standard applicable to the fittings and it was not, at that time, SAI Global’s policy to certify a product against multiple Standards.
Mr Greig recalls that in 2007 he had a number of meetings with representatives of Standards Australia in his role as a member of a technical committee described as WS‑031 which had responsibility (or oversight) for certification of plumbing products. Mr Greig had discussions with committee members and regulators which resulted in an agreement amongst committee members for the development of an Australian technical specification for swivel/expander fittings regardless of the plastic materials used in manufacture. The project to develop a technical specification was allocated the project number ATS5200.055. Mr Greig recalls that drafts of the specification were developed in the course of meetings of committee members and also with industry representatives. Mr Greig says that the draft of ATS5200.055 was not progressed by reason of events including Mr Greig’s departure from SAI Global in November 2007 and the departure of Standards Australia’s own representative on committee WS‑031.
Until 2005, SAI Global enjoyed a monopoly in providing WaterMark certification services in Australia. Private companies then became licensed to provide such certification services.
ACSPL was approached by Plastec in early 2008 to seek assistance in progressing the draft of ATS5200.055 through the WS‑031 Committee process. Mr Greig says that it is quite common practice for plumbing manufacturers to engage a company such as ACSPL to assist in the preparation of a suggested Australian Standard or a technical specification for submission to Standards Australia or its relevant technical committees for consideration. The WMSC expressly contemplates that a CAB undertake or conduct steps towards developing a proposed Standard, an amendment to a Standard or a new technical specification. The CAB is the vehicle through which a proponent liaises with Standards Australia to demonstrate the need for or utility of a new Technical Specification or Standard. The process involves a product manufacturer as proponent submitting a proposed or draft ATS or Standard for review by the technical committees. After review, the ATS or Standard will be submitted to Standards Australia for consideration and the making of a decision to adopt (or not) the ATS or Standard. Mr Greig says that this was the entirely orthodox process followed by Plastec in putting submissions to Standards Australia for the adoption of ATS5200.055, notwithstanding that the project to develop a new ATS was initially raised by committee WS‑031 itself.
Mr Greig says that because swivel/expander type plumbing fittings were a fairly new sort of product, the consensus within the technical committee was that a new Technical Specification should be developed specifically directed to plumbing fittings of that type, regardless of the material out of which the fitting might be made. Mr Greig says that at the time that a need to publish a Standard specific to these types of fittings was identified, it was also identified that there was a need to deal with issues regarding joining of similar but not necessarily identical materials, for example, PVC-U and ABS.
Mr Greig says that ATS5200.055:2008 was developed through a process known as an “unlisted process”. This process is particularly designed to deal with emerging technologies or other circumstances where the lengthy processes (some years of engagement) involved in the development and adoption of an Australian Standard are not able to be undertaken. Sometimes, those processes leading to an Australian Standard will continue to be engaged with a view to transitioning from an Australian Technical Specification to what Mr Greig describes as “a full blown Australian Standard [as a] replacement”. However, Mr Greig says that this does not always occur and while an Australian Standard relevant to the subject matter of an ATS is being developed, the ATS has “full force and effect and for all legal and practical purposes has the same force and effect as a full-blown Standard”. Although, of course, Mr Greig cannot give evidence about the construction of the legislative and regulatory instruments, I have had regard to Mr Greig’s views about the force and effect of an ATS simply for the purposes of recognising the attitude and approach adopted to an ATS from a person with 18 years contextual experience in the business of providing certification services.
The legislative instruments I have already described make it plain that certification to an Australian Technical specification has the same force and effect as certification to an Australian Standard in terms of compliance with the performance requirements of the PCA and a proponent’s lawful entitlement to supply the product or material for use in a plumbing installation.
Mr Greig says that ATS5200.055:2008 was developed to set out the requirements for expander/swivel type plumbing fittings and, specifically, to cover the joining of such fittings where they are made out of one type of plastic material, to a fitting made out of another different type of material and, in particular, to address the joining of plumbing fittings made from ABS to plastic pipe and fittings made from PVC-U.
ATS5200.055:2008 was approved by the Council of Standards Australia on 7 August 2008 and was published on 21 October 2008.
Mr Greig and ACSPL conducted a certification process of examining the Plastec fittings to determine whether they conformed to the requirements of ATS5200.055. As already indicated, ACSPL so certified the Plastec fittings. Mr Greig points out that it is important to appreciate that the adoption of ATS5200.055 was not directed to the specific or individual products of Plastec. The technical specification is just that. It is an Australian Technical Specification to which any manufacturer of products might subject their products to certification according to the requirements of ATS5200.055.
It follows from this discussion that at the moment in time when Mr Martin elected to distribute the Martin material on and from 22 September 2009, the Plastec fittings were the subject of WaterMark Certification and a relevant licence from SAI Global (and had been so from at least 17 October 2007 according to the letter from Mr Robin Richards) as to compliance with AS2887:1993 (and also compliance with ATS5200.040-2005), and also the subject of WaterMark Certification and a relevant licence from Australian Certification Services Pty Ltd from 17 April 2009 as to compliance with ATS5200.055:2008, which certifications entitled Plastec to lawfully supply the Plastec fittings for installation as fittings which satisfied the performance requirements of the PCA for those fittings.
Mr Perham and SAI Global
Mr Perham gave this evidence.
Mr Perham is a plastics engineer by professional qualification.
He commenced working for Plastec in late 1995 or early 1996. His roles include designing new Plastec products to be introduced into the market, overseeing and implementing Plastec’s Quality Assurance Program (“QA program”), and accepting responsibility as Plastec’s Operations Manager for running and overseeing Plastec’s production and manufacturing facility.
Mr Perham was part of a team of three that designed the Plastec swivel and expansion joint, that is, the Plastec fittings.
In the role of implementing and overseeing Plastec’s QA program, Mr Perham has primary responsibility for investigating complaints about Plastec products from customers. If a complaint appears to be warranted and requires further investigation, Mr Perham undertakes that investigation and reports on the outcome. The report is recorded in a record described as Plastec’s “Problem Log”. The QA program requires annual independent external audits of Plastec’s manufacturing processes. They are undertaken with Mr Perham providing whatever assistance might be required by the auditor.
A condition of the WaterMark Certification and licensing arrangement is that Plastec establish, document and maintain a compliance system that ensures the Plastec fittings are manufactured in a way that conforms to the Standards applicable to the products the subject of the certification and licence. The compliance system forming part of the QA program is set out in the QA manual. The manual was first drawn up in 1996. It is revised annually. At the date of swearing Mr Perham’s affidavit filed 23 February 2011 (Vol 5, Tab 18, Exhibit 7) the latest version of the QA manual was the 2010 version. In that affidavit, Mr Perham sets out the eleven major procedures required to be undertaken for the purposes of the QA manual.
ACSPL is Plastec’s CAB. It carries out regular audits as required under the WaterMark Certification and Licensing Scheme.
Mr Perham and the evolution of the Plastec swivel joint
Mr Perham says that the sequence in the development of the Plastec swivel joint is this.
The first model of the swivel joint was released in 2007 (Model 1). A second model of the joint was then released (Model 2) which had two versions described as a “pipe version” and a “socket version”. Model 1 and Model 2 (both the pipe and socket versions of Model 2) of the Plastec swivel joint were sold concurrently from 2007 until the release of Model 3.
Mr Martin contends that Model 1 was withdrawn because it failed to pass a “Clear Bore” test described in para 5.4.1 of AS‑NZS1260. Mr Perham says that where the test applies, it measures the product’s ability to accept passage of a sphere of the relevant diameter as set out in a table. Mr Perham says that Model 1 did not fail such a test and it was not “recalled”. Mr Perham says that although Mr Martin asserts that Model 3 was introduced because earlier models of the swivel joint were experiencing leakage problems, Model 3 was introduced in response to consumer responses. Plumbers had told Plastec that there was a need for a swivel joint that “moved easily when a plumber inspected it”. In order to provide that flexibility of movement on inspection, Mr Perham says that he redesigned the swivel joint to bring into existence Model 3. Mr Perham describes the challenge as one of making the joint not so stiff that it could not move on inspection but not so loose as to be moving during installation.
Mr Perham says that Model 3 went into production in August 2009. Mr Perham says that Model 3 had two further modifications made to it. Mr Perham describes Model 3, for this purpose as Model 3A. A modified version, described as Model 3B, was released which incorporated an additional “O” ring (sometimes called an elastomeric seal). The additional O ring is effectively a backup O ring. Mr Perham says that this additional O ring was not introduced to deal with contended leakage. It was an adaptation that could be incorporated “with very minimal production cost” as an additional feature. At the same time, Plastec changed one of the seals to a “chevron shaped seal”.
Mr Perham says that a modified version Model 3C was then released.
Model 3C introduced a further O ring. This modification was adopted in response to complaints made by plumbers that when the swivel joints were being vertically installed (but prior to the back‑fill occurring) the joint would activate and the vertical installation would “fall out of plum”. The changes to the joint had addressed the earlier comments of a plumber urging more flexible movement to be adopted for inspection when purchasing the joint, but another problem had been created of too much flexibility affecting installation. Accordingly, another O ring was incorporated to address the installation issue, according to Mr Perham. Mr Perham says that at the time Model 3C was developed there was no evidence or suggestion of a leaking fitting. The point of the change was simply a modification to enhance the product and address the installation issue. Plastec continues to sell Model 3C. Mr Perham says that although Mr Martin talks about a Model 4, Plastec has not introduced a Model 4. The product Mr Martin describes as Model 4 is, according to Mr Perham, an entirely separate product called a “Swivel and Expansion Combination Joint” (with Product Codes 16370 and 16365).
Mr Perham says that the photographs incorporated in the University of South Australia Report are examples of Plastec’s Model 2, socket type Plastec swivel joint.
Responses by Plastec to the contention that the University of South Australia Report demonstrated that the Plastec fittings leak
In describing the evolution of the models of the Plastec fittings, Mr Perham observes that these models did not evolve in response to leaks in earlier models. Mr Hawthorne says that he cannot recall Plastec receiving a complaint from a plumber, a plumbing retail store or other consumer that the Plastec swivel and expansion fittings were not suitable for underground pipe installation. Mr Hawthorne says that Plastec maintains a “Problem Log” and of all the thousands of swivel joints sold by Plastec only one entry has been made in the Problem Log of a swivel joint that leaked. That matter was investigated and Mr Hawthorne says that the leakage was found to have been caused by a plumber applying excessive amounts of primer and solvent cement in the jointing process that then penetrated internal parts of the joint and damaged its internal sealing. The leak was due to the method of joining by the plumber. There was no design or manufacturing defect. Mr Hawthorne says that he is unaware of any complaints by consumers of a failure in a joint made between a Plastec ABS/ASA fitting and a PVC product where the joint has been created using Type N solvent cement. Moreover, Mr Hawthorne says that Plastec has never received queries from installers of its swivel and expansion joints or any of its other ABS/ASA products asking Plastec how to use Type N solvent cement for joining Plastec fittings to a PVC pipe or fitting. Mr Hawthorne says that a “core part of any plumber’s skill is the use of solvent cement”, and joining ABS/ASA fittings to PVC fittings “is such a basic part of a plumber’s skills, I would not ever expect there to be … any such queries”.
Mr Hawthorne also says that although the majority of the swivel and expansion joints are used in installations that are below ground, they can also be used and are used in above ground situations. The Plastec fittings are primarily intended to be laid in underground situations to provide low‑pressure drainage for sewerage or waste water.
Mr Perham describes an incident at the testing laboratory of Vipac Engineers and Scientists (“Vipac”) in Melbourne. Mr Perham attended Vipac’s laboratory with Mr Greig to meet with Mr Adam Wegmann of Vipac. In the course of undertaking a testing program to provide an expert report in these proceedings, Vipac had detected what appeared to be a leak from one of the test samples of a Plastec swivel joint that Vipac had prepared. The test in question was a vacuum infiltration test. Mr Perham says this was of great concern to Plastec as Plastec had not had any complaints from customers about leaking joints apart from the one matter earlier mentioned. The test sample which had demonstrated a leak was cut open by Mr Wegmann in the presence of Mr Greig and Mr Perham. The Plastec swivel joint has two O ring seals inside it. One is used to prevent leakage from the swivel joint to the exterior when there is positive pressure inside the joint and its associated piping. The other O ring is used to overcome possible effects of negative pressure, that is, where there may be a partial vacuum inside the swivel joint and its associated piping which might lead to water being sucked or pushed into the joint from its surrounding environment. In order to test the joint, Vipac had bonded a length of pipe to each side of the swivel joint. The length of pipe on either side of the joint had been bonded by blue solvent cement. When the sample was cut open, Mr Perham said that he could see that a quantity of solvent cement had been allowed to dribble down and then harden on the inner face of the ball section of the swivel joint. The inner face moves over the corresponding outer face of the socket part of the swivel joint and, in particular, across the two O rings placed inside the joint to prevent leakage under positive or negative pressure. Mr Perham felt the inner surface of both the ball and of the socket parts. He could not see any imperfections on the ball or socket and no evidence of blemishes or defects in the O rings. Both O rings were sitting properly in the machined grooves into which they fit. Mr Perham concluded that the leak was not due to any defect in manufacture or imperfections in the O ring seals but rather due to drips of cured and hardened blue solvent cement sitting under the O ring seal designed to overcome negative pressure.

On 30 September 2009, Mr Casey of Plastec sent an email to Mr Jeffrey Clark attaching copies of Certificates of Conformity issued to Plastec. In the email, Mr Casey sought to address issues arising out of the distribution of material into the marketplace “from a private plumbing consultant” concerning the joining of ABS/ASA and PVC‑U materials. Mr Casey sought to demonstrate to Mr Clark that Plastec had obtained certification to ATS5200.055 and attached supporting documentation. Mr Casey said that advice was being sought from SAI Global and ASCPL about aspects of that matter.
Plastec’s response to the Martin material
Ultimately Plastec, by its solicitors, wrote a letter of demand to Mr Purdon about the material and, relevantly for present purposes, a letter to Mr Martin on 2 November 2009 by which certain undertakings were sought. They were not forthcoming and these proceedings commenced on 13 November 2009.
Interlocutory injunction orders were made on 21 December 2009 pending trial, restraining Mr Martin from making the particular statements described in those orders.
The conduct of the proceedings against Mr Martin has, in all practical senses, been conducted by D’Angelo Kavanagh, the solicitors for Storm Plastics. Invoices throughout the currency of the matter were issued by D’Angelo Kavanagh to Mr Martin. However, those invoices were paid by Storm Plastics. Storm Plastics, through Marco Elbe, played a significant role in organising expert evidence from CRT Laboratories Inc. (“CRT”) in the United States in the early part of the proceedings. A letter to CRT providing background and requesting a report was written by Mr Martin and sent on the letterhead of SP under the name Marco Elbe. Marco Elbe sent the letter to CRT by email on 10 December 2009 and actively engaged with D’Angelo Kavanagh and CRT about the matters the subject of that report.
More particularly however, the measure of the engagement by Storm Plastics or its interest in the proceedings against Mr Martin can be seen in the payment by Storm Plastics of all of the costs and expenses of resisting the claims of Plastec in the litigation, on behalf of Mr Martin, up to the time when those solicitors and counsel withdrew from continuing to represent Mr Martin, namely, on or about 14 June 2011. Plainly enough, although Mr Martin was the respondent in the proceeding, Storm Plastics had a major interest in resisting Plastec’s claims against Mr Martin which were directed to testing the question of whether the statements made by Mr Martin were accurate, and whether addressees might have been misled or deceived about aspects of the material. The whole thrust of Mr Martin’s agitations had been to secure the withdrawal of the certifications for the Plastec fittings. SP, as Plastec’s rival, was engaged hand‑in‑glove in the entire process.
The total amount paid by Storm Plastics on behalf of Mr Martin’s legal representation in the proceedings is $427,004.36. During the course of cross‑examination counsel for Plastec put to Mr Martin that the person who was principally responsible for giving instructions to Mr Kavanagh on the defence of the proceedings on behalf of Mr Martin was, Mr Marco Elbe. Mr Martin was quite evasive in his answers about this matter although when asked “You would agree with that, wouldn’t you?”, he responded, “It may have been the case”, and when it was put to Mr Martin that he was not disagreeing with that proposition he said, “No”. When asked whether he would accept it as true, he said, “It may be absolutely true. I don’t know”. Mr Martin also said that he rather hoped that Mr Kavanagh was the person running the defence and when the proposition was put to Mr Martin that Mr Kavanagh and Mr Elbe were the people “deciding what happened in your defence”, he responded by saying, “It may well have been at the time”.
Apart from these legal fees, Storm Plastics (Marco Elbe) had previously paid fees to Mr Martin for consultancy services and the costs associated with Mr Martin attending a conference in Canberra.
The background facts to the relationship between Storm Plastics and Mr Martin may well lie in Mr Martin’s acceptance of the fact that Mr Martin Bennett, the Managing Director of Storm Plastics, and Mr Martin had known each other for over 40 years and their friendship had developed as plumbers, although Mr Martin denied they were close friends.
In the course of closing submissions, Plastec provided a schedule drawn from each of the invoices issued by D’Angelo Kavanagh to Mr Martin (as addressee) concerning the description of the work undertaken in engaging with Mr Martin. I will not reproduce that schedule in these reasons. However, I have reviewed the invoices and I accept the schedule as an accurate statement of the attendances. I have also had regard to the extensive sequence of email exchanges between Marco Elbe and Mr Le Jeune (CRT); email exchanges between Marco Elbe and Ralph Martin; email exchanges between Marco Elbe and Mr Kavanagh concerning Mr Martin’s statement and affidavits, the affidavits on behalf of Plastec and the general engagement between Marco Elbe and D’Angelo Kavanagh in the conduct of the proceedings on behalf of Mr Martin, and also the engagements with counsel.
I have reviewed extensively the sequence of engagements commencing as early as 28 June 2005 between Mr Martin and Storm Plastics and particularly Mr Martin’s engagement with Storm Plastics through Marco Elbe and, from time to time, Mr Bennett. I have done so to determine the scope of the role played by Mr Martin and Storm Plastics inter se in connection with the attack upon AS 2887, ATS5200.055, Plastec and the Plastec fittings. There is simply no doubt that throughout the entire period of the chronology reflected in the analysis of that engagement, Mr Martin was acting, in every practical sense, as an advocate for Storm Plastics in seeking to undermine the acceptance of the Plastec products; undermine the certification under AS 2887; secure the “demise” of ATS5200.055; secure the suspension of the ATS certification with the practical effect of removing the Plastec products from the market; and characterise the conduct of Plastec as collusive and improper conduct in concert with Standards Australia and SAI Global so as to obtain certifications to which it was not entitled, all directed to removing the Plastec products from the market.
I am satisfied that as to the representations relied upon by Plastec the true position concerning each matter is this. At all material times relevant to these proceedings (and including the various dates of publication of the Martin material by Mr Martin to each addressee):
1.Plastec has conducted its undertaking of manufacturing and selling the Plastec fittings (as described in the SFASC) in compliance with the requirements of the Plumbing Code of Australia, Regulation 8A of the Standard Plumbing and Drainage Regulation 2003 (Qld) made pursuant to The Plumbing and Drainage Act 2002 (Qld) and in compliance with Australian Standard AS/NZS3500.
2.Plastec has not advertised in a brochure published by it, a method of fixing the Plastec fittings to other products manufactured from PVC‑U using Type N solvent cement in contravention of ATS5200.055 as the advertised method of fixing the Plastec fittings to PVC‑U materials complies with ATS5200.055.
3.It was not illegal to join the Plastec fittings made from ABS or ASA to a plumbing product made from PVC‑U using Type N solvent cement as such joining is expressly contemplated by ATS5200.055.
4.The Plastec fittings were certified with a WaterMark certification complying with ATS5200.055.
5.Plastec did not illegally collude with SAI Global or Standards Australia or both so as to obtain approvals for the Plastec fittings to which Plastec was not entitled.
6.The Plastec fittings brochure referred to at para 16(f) of the SFASC was not untrue or misleading to the extent that it represented that the Plastec fittings had been WaterMark approved to ATS5200.055 as they had such an approval.
7.Connecting Plastec fittings to underground sanitary drainage systems would not breach or otherwise be contrary to Australian Standards having regard to the terms of ATS5200.055.
8.Australian Standards do not require the Plastec fittings to be connected to a pipe or material manufactured from PVC‑U by means of a mechanical coupling as ATS5200.055 expressly provides for the joining of ABS/ASA plastics materials to PVC‑U plastics by way of a solvent cement.
9.No evidence has been adduced of any failure in a joint made by joining the Plastec fittings to PVC‑U materials by means of a solvent cement joined in the manner required by ATS5200.055 and no evidence has been adduced of a failure or “problem” in sanitary plumbing systems for over two years, as represented, through the use of the Plastec fittings and nor is there any basis for contending that “such problems” are “out of hand”.
10.The certifications obtained by Plastec in respect of the Plastec fittings are valid as they were obtained by Plastec from a certifier in accordance with the WaterMark Certification Scheme from a Conformity Assessment Body based upon tests from a testing facility which was independent and thus the certifications can be relied upon, and Plastec has not illegally represented its Plastec fittings as being certified to particular Australian Standards when they are not so certified.
11.Australian Standards published by Standards Australia Limited were and are credible instruments and do not lack credibility by reason of the incorrectness of the matters at paras 1 to 10 as the matters at paras 1 to 10 are correct and there is no evidence to the contrary.
12.Standards Australia Limited has not acknowledged that AS2887:1993 was not a correct Standard for the evaluation of the Plastec fittings and to which the Plastec fittings were certified.
13.The Plastec fittings, considered as part of a line of products manufactured and sold by Plastec, are not defective.
14.The Plastec fittings did not leak from the outset when correctly installed in drainage systems.
15.Five randomly selected Plastec fittings and five randomly selected Storm Plastics fittings were not each subjected to an independent test which proved that the five Plastec fittings failed to meet the requirements of ATS5200.055 whereas such tests demonstrated that the five Storm Plastics fittings did meet the requirements of ATS5200.055 because the test undertaken at the Australian Irrigation Technology Centre within the Division of IT, Engineering and the Environment at the University of South Australia was not an independent test; the test was procured, and paid for, by Storm Plastics; a decision was made by Storm Plastics and Mr Martin after discussions between each other and after the report had been formulated, that the report would be addressed to Mr Martin as the applicant rather than Storm Plastics; the test results included within the Martin material and the Purdon letter do not demonstrate that the five Plastec fittings failed the tests required by ATS5200.055 and that the five Storm Plastics fittings passed such tests; and the Plastec fittings and the Storm Plastics fittings involved in the test were not randomly selected.
16.Plastec did not supply thousands of Plastec fittings throughout Australia and New Zealand which are defective.
17.The report of the University of South Australia attached to the Martin material was prepared for the benefit of and on the instructions of Storm Plastics through the engagement of Mr Marco Elbe and Mr Ralph Martin in their dealings with the University, and the Plastec joints subjected to testing at the University Centre were provided to the Centre by Storm Plastics and Mr Martin rather than procured independently by the University itself.
18.The report of the University of South Australia was written by Mr Martin in the sense that he was the actual author of the report and exercised editorial control over the text of the report and the selection of the test results to be included in the report and those results to be excluded from the report, and Mr Martin directed tests to be undertaken (hydrostatic tests) in a modified form in a way not required by the testing protocols of ATS5200.055.
19.The Purdon letter described as the Purdon Report was not a report prepared independently of any other person as Mr Martin became a joint author of the report by adopting it for distribution in a form which it took after the “beefing up” by Mr Martin of the original draft letter sent by Mr Purdon to Mr Martin.
20.The Martin material distributed on and after 22 September 2009 was influenced in its form by Mr Martin’s pre‑disposition to secure the demise of ATS5200.055 so as to remove the Plastec fittings from the market and advance the interests of Plastec’s principal rival, Storm Plastics with whom Mr Martin had enjoyed a commercial relationship since at least 28 June 2005 and a personal relationship with Mr Martin Bennett, the Chief Executive of Storm Plastics for approximately 40 years.
In giving evidence about the University Report, Mr Martin said that he “… did in fact draft it up. There’s no two ways about that”. Mr Martin made that observation in the context of seeking to explain why that became necessary. Later in his evidence he described his role a little more narrowly by saying “… it was I who did a lot of that preliminary drafting of that particular report …”.
I find that Mr Martin was evasive in many of his answers to the questions put to him about the sequence of exchanges with Marco Elbe and others and the authorship and evolution of the Purdon letter and the University of South Australia Report. I find that Mr Martin was unwilling to confront and answer directly questions about the long sequence of exchanges.
These proceedings are concerned with the pleaded statements made in the Martin material distributed by Mr Martin on and after 22 September 2009 (but commencing, on the evidence, on 29 September 2009) by electronic dissemination as attachments to emails using a telecommunications network and through the postal service. Primary liability is asserted against Mr Martin of a contravention of s 52 having regard to s 6(3) of the Trade Practice Act (1974) (Cth) (as the material law).
Further findings
I find that each of the pleaded statements are representations of fact as to the subject matter of each statement.
I find that each representation was made by Mr Martin by distribution of the Martin material by email communications using a telecommunications network and by use of the postal service.
I find that the representations when made were not true.
I find that the true position as to each matter the subject of the misrepresentations, and matters related to those representations, is the position set out at points 1 to 20 at para [360] of these reasons.
I find that the representations were misleading and deceptive as, by making the representations, Mr Martin urged each addressee to rely upon the truth of the representations when those representations were not true.
In trade or commerce
I find that Mr Martin engaged in the conduct as a consultant to Storm Plastics (SA) Pty Ltd. I so find having regard to Mr Martin’s election to describe himself as a consultant in the description he adopted for the purposes of the University of South Australia Report; his previous provision of consultancy services to SP (SA) on the same subject matter and SP (SA)’s payment of those fees; SP (SA)’s payment of Mr Martin’s attendance at a conference in Canberra; Mr Martin’s close engagement with SP (SA) over, particularly, the period 2007, 2008 and up to and including 22 September 2009, as reflected in the exchanges already described; and, the payment by SP (SA) of Mr Martin’s legal fees amounting to $427,004.36 representing a substantial benefit to Mr Martin arising out of the role he played for SP.
More fundamentally however, the exchanges between SP (SA) and Mr Martin make it plain that Mr Martin was closely engaged, hand‑in‑glove, with SP (SA) in agitating the positions asserted in the exchanges earlier described so as to secure the removal of compliance certification for the Plastec fittings to the immediate commercial advantage of the rival’s substitutable product and thus the commercial advantage of SP. That conduct formed a central part of the conduct immediately in issue, namely, the making of the representations in suit. That conduct caused Plastec to seek to counter it and defend the compliance certifications so as to preserve the continuing right to supply compliant fittings into the market.
I am satisfied having regard to the observations of Mason CJ, Deane, Dawson and Gaudron JJ in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603 and 604; Houghton v Arms [2006] HCA 59; and Taylor v Crossman (No. 2) [2012] FCAFC 11 per the Court at [44] that Mr Martin’s conduct occurred in the trade or commerce of SP and also in the trade or commerce of Plastec, as it bore the character of activities central to the rivalrous conduct of each corporation, and the success or otherwise of Mr Martin’s conduct directly affected the trading or commercial position of each company in the market for the supply of their respective products.
Findings as to the contentions concerning “opinions”
To the extent that any of the representations are asserted to be simply expressions of opinion (as Mr Martin contends – although I find the statements in suit made in the Martin material are representations as to a prevailing factual position) I find that, having regard to the compliance certifications Plastec enjoyed for its Plastec fittings obtained in conformity with the WMCS (AS 2887; and later ATS5200.055); the express terms of ATS5200.055; the absence of any basis for an assertion of collusion between Plastec, SAI Global and/or Standards Australia Limited; the absence of any representative examples of failures in installations due to failures in a joint made by combining Plastec ABS/ASA fittings with PVC‑U pipe and fittings (in conformity with ATS5200.055); the absence of any evidence of Plastec fittings leaking in installations or causing problems for a period of “[over] two years” or causing problems to such an extent that the problem is “out of control”; the absence of evidence that the test data upon which the certifications for the Plastec fittings rest, was not properly obtained from an independent testing authority; the absence of any evidence that the Plastec fittings “leak from the outset” and are “defective” and “thousands” of such defective fittings have been supplied; and Mr Martin’s knowledge that the Purdon letter and the AIT Centre Report were not truly independent arms‑length objective assessments of the subject matter they purported to address:
1.To the extent that any or all of the statements in suit are properly characterised as expressions of opinion, those opinions were predicated upon a representation to each addressee invited to rely upon the Martin material that the statements in suit contained within it were based upon reasonable grounds and were honestly held by Mr Martin, upon rational grounds, involving an application of relevant expertise to the matters the subject of each individual statement in suit, and a representation that such statements were independent and objective statements of opinion in relation to the matters addressed in the material;
2.The statements however were neither based upon reasonable grounds nor were they genuinely held views upon rational grounds involving an application of relevant expertise at the moment of distribution of the Martin material in September 2009 and nor were they independent and objective opinions in relation to the matters expressed;
3.The making of the statements by Mr Martin was inextricably bound up with the promotion of the products of Storm Plastics and a campaign to secure the removal of the compliance certifications for the Plastec fittings so as to advantage Plastec’s rival, SP.
Further matters raised by Mr Martin

In the course of these reasons I have identified many of the contentions made by Mr Martin in the body of the letters and emails written and sent by him as part of the exchanges described earlier. Mr Martin continues to assert in his opening address of mixed submission, opinion and fact, most of those arguments. I have also addressed contentions of Mr Martin in relevant parts of these reasons.
However, it is important to remember that these proceedings are concerned with specific questions going to particular representations in issue in these proceedings and the questions include whether the representations in suit made by Mr Martin in September 2009 (and later) by distribution of the Martin material, were correct or not when made at that moment in time. The statements were manifestly not correct and in respect of many of them, Mr Martin had no basis whatsoever for making them, especially, what was said to be the compelling authority of the independent report of the AIT Centre, the allegations of collusion and many other matters already mentioned.
Mr Martin seeks to answer the specific case made against him by advancing and relying upon his own opinions about matters of fact. He contends that the statements are merely opinions genuinely held. I have found that the statements are representations as to each particular matter and they were not genuinely held views about the subject matter of each statement in suit because Mr Martin did not have a rational foundation for them and he also knew some of them to be wrong.
In answer to these specific claims, Mr Martin says that he has maintained an active interest in the plumbing industry. He says that flexible fittings for use in sanitary drainage pipe systems laid in reactive soils is a matter of particular interest to him. This interest caused Mr Martin, he says, to formulate responses to the publication of ATS5200.055. Mr Martin makes submissions and seeks to give evidence about the structure and functionality of the Plastec swivel and expansion joints to support what he says are the “opinions” he expressed as to the subject matter of each statement.
In a real sense, Mr Martin seeks to swear the issue (especially on the topic of leaks) by attempting to give evidence that the structure of the Plastec swivel joint is such that one can have no confidence that it will not leak. This evidence is advanced to answer the criticism that the representations as to leaks in Plastec fittings and failures in the fittings are either true or reasonably held opinions. No evidence of any example of a failure in a joint using a Plastec swivel fitting is adduced by Mr Martin.
Notwithstanding that, Mr Martin says that the foundation for his “opinion” lies in this analysis.
He says the Plastec swivel joint is divided into two sections, the first consisting of a waterway and the second comprising an outer section or void with the two sections divided by an elastomeric seal, which he says “allegedly” creates a watertight joint. Mr Martin contends that the seal may not render the fitting watertight and it may not be apparent that the fitting leaks (through the seal) because the outer section of the fitting operates as a second chamber into which fluid may flow without it being apparent that the integrity of the fitting is compromised. Mr Martin says the Plastec swivel joint is “too flexible” which compromises its “structural integrity” and its “watertightness”. Mr Martin says that if the elastomeric seal is fulfilling its role in acting as a seal between the waterway and the outer sections of the assembly, the area should be dry at all times, subject to the external environmental circumstances. Mr Martin contends that when both the waterway and the outer section of the assembly are charged with internal hydrostatic pressure, the sealing element of the assembly is “transferred to a plastics‑to‑plastics contact” and thus the angular sliding gap is transformed into a de facto joint between the angled inner reach of the rim of the outer housing and the external surface of the semi‑spherical half‑socket component. Mr Martin says any external movement of the outlet connection to the opposing inner semi‑spherical half‑socket section will break the de facto seal causing the fitting to exhibit leakage from the pressurised assembly.
Mr Martin also says that on those occasions when the elastomeric seal has not provided a watertight seal, there is a high risk of “conveyed silts” or “fines” from within the liquid waste bypassing the “purported seals” to be deposited in the outer section or void of the fitting. Mr Martin says that in time, the fitting may fail.
There are a number of problems with this evidence and the submissions built upon it.
First, no expert has been called by Mr Martin to give evidence of such an expert’s opinion as to these matters or his or her examination of the Plastec fittings, the contended structural functioning of the fitting, the relationship between the so‑called waterway section, the elastomeric seals and the so‑called outer section or void.
Second, no expert has been called by Mr Martin to give evidence of any tests undertaken relevant to Mr Martin’s analysis of the functionality of the Plastec fittings and what is essentially a contention of design defect.
Third, Mr Greig gave evidence that the Plastec fittings have passed all the tests required for those fittings by a CAB, to secure certification.
Fourth, the fittings passed the CSIRO tests and other tests referred to in the evidence (the Falcon tests).
Fifth, Mr Greig says the tests he has seen show that the fittings do not leak notwithstanding Mr Martin’s hypothesis, and the question under ATS5200.055 is whether the assembled fitting as manufactured meets the performance requirements. According to Mr Greig, they do comply having regard to all the test data on the products required so as to satisfy certification by a CAB to ATS5200.055.
Sixth, the analysis of functionality postulated by Mr Martin is his own hypothesis and I am not satisfied that Mr Martin, as a retired plumber, has the necessary relevant expertise in a relevant discipline so as to exercise the privilege of giving opinion evidence that the structural design of the Plastec fittings is so flawed having regard to the physics and functionality of the joint that he can say the fittings will fail or are at serious risk of failure. Even if Mr Martin’s practical experience in the plumbing industry and the aggregate of his practical experience gained in the later roles he discharged were to provide him with a basis for forming, and giving evidence of, an opinion about the functionality of the Plastec fittings in the context of an hypothesis about the potential of the fittings to leak, that opinion fails to take into account or properly address the body of data demonstrating compliance of the fittings to the Standard and ATS and cannot be preferred over the body of evidence called by the applicant.
Mr Martin’s own evidence to this effect not only swears the issue but is inadmissible.
Finally, Mr Martin’s hypothesis is no answer to the making of the sequence of quite specific representations in suit. When Mr Martin distributed the Martin material, the fittings were certified. They complied with ATS5200.055 having been so certified by a CAB in accordance with the WMCS. They are not shown to have leaked. No example of a Plastec fitting having caused a failure in any installation was available to Mr Martin at the time of distribution of the Martin material or at all and no evidence is now adduced of such a failure. All the independent tests demonstrated that the Plastec fittings met the performance requirements of the PCA and it was lawful for Plastec to supply the Plastec fittings.
Mr Martin also contends that QTL was not independent of Plastec and he contends that Mr Perham’s role shows that to be so. Therefore, he says Plastec and QTL were in a conflict of interest when the tests, leading to the certification reliant upon those tests, were undertaken. Mr Perham does indeed have a role (as described in these reasons) at QTL. He did not however have any role to play in conducting or approving the QTL tests described in these reasons. Notwithstanding Mr Martin’s suspicions, there was no basis for the contention that QTL and Plastec colluded or improperly contrived to produce test results that were not based upon independent NATA protocols or not genuine.
This contention of Mr Martin is odd having regard to the role Mr Martin played in directing the modified tests to be done at the AIT Centre and in writing the report of that Centre.
Mr Martin also places considerable emphasis in his defence of the claims on two matters. First, Plastec at one point published a brochure that incorrectly referred to certification of a Plastec fitting to AS 1260 instead of AS 2887. Secondly, Plastec prematurely allowed some Plastec fittings “certified to ATS5200.055” to be released to the market out of the separate storage area for these fittings, before the publication of ATS5200.055. The first matter was an error on Plastec’s part. The second was also an error in the packing and despatch protocols within the production, storage and despatch facilities operated by Plastec. Neither matter has anything to say about an answer to Plastec’s complaints about the specific sequence of representations made by Mr Martin in September 2009 by reason of Mr Martin’s election to make the representations he made by distributing the Martin material.
As to the objections to evidence made by Plastec to aspects of Mr Martin’s affidavits, I take this course.
As to those challenges to paragraphs to Mr Martin’s affidavits on the ground of relevance, I dismiss those objections.
As to the challenges to those parts of Mr Martin’s affidavits on the grounds that the evidence is opinion evidence going to the structural functionality of the Plastec fittings as a matter of physics and the likely performance of the fittings under the postulated circumstances; evidence going to the molecular bonding properties of differential plastics materials; evidence going to thermal expansion rates of particular plastics materials and the dynamics of thermal expansion; and evidence going to the chemical properties of particular glues, I uphold the objections to that opinion evidence reflected in Mr Martin’s affidavits.
The implied immunity or constitutional guarantee
Mr Martin contends, in effect (and I will formulate the contention in a structured way as Mr Martin is self‑represented), that the prohibition contained in s 52(1) of the Trade Practices Act upon engaging in conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive consumers, can have no operation as a valid law of the Commonwealth with respect to matters of regulatory reform, as the conduct asserted against him (and as found) engages the implied immunity or freedom as formulated in Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104 at 208 and the unanimous and joint judgment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 552. See also the two 1992 decisions of Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.
Where a putative burden on governmental and political communication has its source in a statute, the issue presented for the Court is one of limitation upon legislative power: Wotton v State of Queensland [2012] HCA 2; (2012) 285 ALR 1 per French CJ, Gummow, Hayne, Crennan and Bell JJ (proposition (i)) at [22] and [23]; per Heydon J at [54] and Kiefel J at [76] to [78]. Mr Martin’s contention as to the limitation upon power so far as it relates to s 52(1), raises the application of the two well‑settled Lange questions restated by the whole High Court in Hogan v Hinch (2011) 243 CLR 506 at [94] to [97]. Those questions are now formulated in this way. First, “Does the [impugned] law effectively burden freedom of communication about governmental or political matter either in its terms, operation or effect?”; If so, “Is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 [of the Constitution]?”: Lange at 567; Hogan v Hinch at 542 [47] and 556 [97]; Wotton v State of Queensland at [25], [40] and [41].
In considering the Lange questions, a further question arises of what is the relevant field of communication respecting governmental or political matters relied upon?: Wotton at [26]. Mr Martin would contend that the relevant field is communication concerning the legislative and regulatory environment applying the lawful use of plumbing products in particular installations throughout Australia. Does s 52(1) burden freedom of communication about those matters (assuming for the purposes of the argument that the field relied upon engages governmental or political matters) either in terms, operation or effect?
The answer is that it does not.
The section prohibits conduct (no doubt consisting of communications) that is likely to mislead or deceive consumers (in the sense that term is understood for the purposes of s 52) or conduct which is misleading or deceptive of consumers concerning the making of representations. The constitutional guarantee of freedom from statutory burdens on communication about governmental (regulatory) or political matters, is not a guarantee of a freedom to distribute in trade or commerce material containing misrepresentations as to the subject matter of each statement in issue: see Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc. (No. 2) (1993) 41 FCR 89.
The legislative power of the Commonwealth is not limited by the constitutional guarantee so as to render a law that prohibits a person (by force of s 6(3) of the Trade Practices Act) from engaging in conduct of communicating misleading or deceptive statements to consumers or statements likely to mislead or deceive consumers (where the subject matter of the communication concerns the regulatory matters Mr Martin relies upon), a law in excess of the legislative power of the Commonwealth.
Orders
For all of these reasons, it follows that judgment must be entered for the applicant with costs. I will direct the applicant to submit minutes of order to the Court within 10 days for further consideration in the making of final orders. The principal relief sought by the applicant in the proceedings is a declaration and injunctions. The Court will make a declaration as to the relevant matters and grant an injunction restraining Mr Martin from making further representations in terms of the representations the subject of the suit.

I certify that the preceding four hundred and two (402) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.
Associate:
Dated: 18 May 2012

Citation:	Plastec Australia Pty Ltd v Plumbing Solutions Pty Ltd [2012] FCA 510
Parties:	PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 v PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629, TONY GREGORY PURDON and RALPH T MARTIN
File number:	QUD 272 of 2009
Judge:	GREENWOOD J
Date of judgment:	18 May 2012
Catchwords:	TRADE PRACTICES – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification – consideration of the extension provision, s 6(3) of the Trade Practices Act 1974 (Cth) as the applicable law at the material time – consideration of whether the material distributed by the third respondent containing the statements in suit, were statements made “in trade or commerce” – consideration of whether s 52 so far as that section purports to regulate conduct said to be misleading or deceptive in circumstances where the statements concern aspects of the legislative and regulatory environment governing the plumbing industry, engage the constitutional limitation or guarantee the subject of the decisions in Lange v Australian Broadcasting Corporation; Hogan v Hinch and Wotton v State of Queensland and related earlier authorities of the High Court (cited below) – consideration of whether, on the facts, the statements were representations or statements of opinion – consideration of whether the conduct of the third respondent in making the various statements was conduct in close association with the applicant’s principal rival CONSUMER LAW – consideration of whether a document distributed by means of a telecommunications facility and through the use of the postal service, contained representations of fact which were misleading or deceptive or likely to mislead or deceive consumers as to the entitlement of the applicant to sell plumbing fittings described and marked as compliant with a particular Australian Standard and an Australian Technical Specification STATUTES – consideration of the application of the cooperative arrangements for the legislative and regulatory arrangements governing the plumbing industry in Australia and New Zealand, by reference to the legislative instruments adopted in Queensland as emblematic of each jurisdiction’s legislation, including The Plumbing and Drainage Act 2002 (Qld); Standard Plumbing and Drainage Regulation 2003 (Qld); the provisions of the Plumbing Code of Australia 2004; and various Australian Standards and particularly Australian Technical Specification 5200.055:2008
Legislation:	Trade Practices Act 1974 (Cth); s 52 Evidence Act 1995 (Cth); s 79
Cases cited:	Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 - cited Houghton v Arms [2006] HCA 59 - cited Taylor v Crossman (No. 2) [2012] FCAFC 11 - cited Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104 - cited Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 – cited and quoted Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 - cited Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 - cited Wotton v State of Queensland [2012] HCA 2; (2012) 285 ALR 1 – cited and quoted Hogan v Hinch (2011) 243 CLR 506 - cited Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc. (No. 2) (1993) 41 FCR 89 – cited
Date of hearing:	14 June 2011, 17, 18, 19, 20 April 2012
Date of last submissions:	20 April 2012
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	402
Counsel for the Applicant:	Mr F Kunc SC and Mr C Johnstone on 14 June and 15 June 2011 Mr C Johnstone on 17, 18, 19 and 20 April 2012
Solicitor for the Applicant:	Bennett & Philp Lawyers
Counsel for the First and Second Respondents:	Mr D Atkinson on 14 June and 15 June 2011
Solicitors for the First and Second Respondents:	DLA Piper Global Law Firm
Counsel for the Third Respondent:	Mr N G Rochow SC and Mr G Coppola until 15 June 2011
Third Respondent appeared in person on 17, 18, 19 and 20 April 2012
Solicitors for the Third Respondent:	D’Angelo Kavanagh Barristers and Solicitors until 15 June 2011

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 272 of 2009

JUDGE:	GREENWOOD J
DATE OF ORDER:	18 MAY 2012
WHERE MADE:	BRISBANE

JUDGE:	GREENWOOD J
DATE:	18 MAY 2012
PLACE:	BRISBANE