Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340

Federal Court of Australia

Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 File number: VID 528 of 2019

Judgment of: SNADEN J

Date of judgment: 14 November 2022

Catchwords: CONSUMER LAW – misleading and deceptive conduct –representations by market participants about the qualities or characteristics of one participant's product – applicant alleged contraventions of ss 18 and 29(1)(g) of the Australian Consumer Law ("ACL") – cross-claim by respondent – where respondent alleged contraventions of ss 18, 29(1)(a) and (g), and 33 of the ACL – whether counter-marketing campaign was misleading, deceptive or false – elements of misleading and deceptive conduct – interpretation of the National Construction Code ("NCC") – whether representations to the market were misleading, deceptive or false – consideration of relevant audience – whether representations made with adequate scientific foundation – whether declaratory relief warranted – whether injunctive relief should be granted – application dismissed and cross-claim upheld TORTS – tort of injurious falsehood – elements of tort – whether representations made by the respondent were false – whether representations were attended by malice – where representations reflected views that were genuinely held by the respondent EVIDENCE – where applicant objected to admissibility of expert witness evidence – where objection based on alleged lack of independence of expert witness – where expert witness was previously commissioned to produce a report by the respondent – where expert witness's report was used to justify alleged representations – finding that evidence admissible – whether general discretion to exclude evidence under s 135 of the Evidence Act 1995 enlivened – finding that evidence held probative value