Federal Court of Australia Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 File number: VID 528 of 2019 Judgment of: SNADEN J Date of judgment: 14 November 2022 Catchwords: CONSUMER LAW – misleading and deceptive conduct –representations by market participants about the qualities or characteristics of one participant's product – applicant alleged contraventions of ss 18 and 29(1)(g) of the Australian Consumer Law ("ACL") – cross-claim by respondent – where respondent alleged contraventions of ss 18, 29(1)(a) and (g), and 33 of the ACL – whether counter-marketing campaign was misleading, deceptive or false – elements of misleading and deceptive conduct – interpretation of the National Construction Code ("NCC") – whether representations to the market were misleading, deceptive or false – consideration of relevant audience – whether representations made with adequate scientific foundation – whether declaratory relief warranted – whether injunctive relief should be granted – application dismissed and cross-claim upheld TORTS – tort of injurious falsehood – elements of tort – whether representations made by the respondent were false – whether representations were attended by malice – where representations reflected views that were genuinely held by the respondent EVIDENCE – where applicant objected to admissibility of expert witness evidence – where objection based on alleged lack of independence of expert witness – where expert witness was previously commissioned to produce a report by the respondent – where expert witness's report was used to justify alleged representations – finding that evidence admissible – whether general discretion to exclude evidence under s 135 of the Evidence Act 1995 enlivened – finding that evidence held probative value Legislation: Competition and Consumer Act 2010 (Cth) – sch 2, ss 18, 29, 33, 232 Evidence Act 1995 (Cth) – ss 76, 79, 135 Federal Court of Australia Act 1976 (Cth) – s 21 Building Act 1993 (Vic) Federal Court Rules 2011 (Cth) – pt 23 Building Regulations 2018 (Vic) Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564 Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 Australian Competition and Consumer Commission v H J Heinz Company Australia Ltd (2018) 363 ALR 136 Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96 Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (2021) 158 ACSR 31 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd [2020] FCA 1340 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450 Australian Softwood Forests Pty Ltd v Attorney General (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121 Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 Guy v Crown Melbourne Ltd [2017] FCA 1104 Ibeneweka v Egbuna [1964] 1 WLR 219 Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2) [2017] FCAFC 99 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 National Roads and Motorists' Association Ltd v Construction, Forestry, Mining and Energy Union (2019) 291 IR 28 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622 Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS631436T [2021] VSCA 72 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 Warramunda Village Inc v Pryde (2001) 105 FCR 437 Yorke v Lucas (1985) 158 CLR 661 Justice Robert French, 'Declarations – Homer Simpson's remedy – is there anything they cannot do?' [2007] FedJSchol 24 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 396 Date of last submissions: 6 September 2021 (Applicant, Cross-Respondent) 10 September 2021 (Respondent, Cross-Claimant) Date of hearing: 28 June 2021 – 2 July 2021 and 13 July 2021 Counsel for the Applicant / Cross-Respondent: Mr T J Walker QC with Mr R J Harris Solicitor for the Applicant / Cross-Respondent: Mills Oakley Counsel for the Respondent / Cross-Claimant: Mr C M Archibald QC with Mr L Connolly and Mr A Terzic Solicitor for the Respondent / Cross-Claimant: Herbert Smith Freehills ORDERS VID 528 of 2019 BETWEEN: PIRMAX PTY LTD Applicant AND: KINGSPAN INSULATION PTY LTD Respondent AND BETWEEN: KINGSPAN INSULATION PTY LTD Cross-Claimant AND: PIRMAX PTY LTD Cross-Respondent order made by: SNADEN J DATE OF ORDER: 14 November 2022 THE COURT ORDERS THAT: 1. On the originating application dated 17 May 2019, there be judgment for the respondent. 2. The originating application dated 17 May 2019 be dismissed. 3. On the notice of cross-claim dated 7 June 2019, there be judgment for the cross-claimant. 4. Within 14 days of the date of these orders, the parties must confer and, if possible, agree upon and submit to the chambers of Justice Snaden a minute of orders for final relief (including costs) that reflect the court's reasons for judgment herein. 5. In the event that no such agreement is possible, the parties each prepare and submit, within 21 days of these orders, a minute of orders for final relief (including costs) that they propose in reflection of the court's reasons for judgment herein, together with brief written submissions (of no more than three pages) in support thereof. 6. Further orders for final relief (including costs, as appropriate) be made on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Part 1: Overview [1] Part 2: Building industry regulations [7] 2.1 The National Construction Code [7] 2.2 NCC 2015 [13] 2.3 AS ISO 9705 [23] 2.4 NCC 2016 [27] 2.5 AS 5637.1 [31] 2.6 The NCC 2016 "Transitional Provision" [36] 2.7 NCC 2019 [38] Part 3: Background and evidence [40] Part 4: Dr Barnett's evidence [51] Part 5: The HR panel product [61] 5.1 Pirmax enters the market for the supply of rigid foam insulation products [61] 5.2 The HR Panel Product reports [66] 5.2.1 The Pirmax Exova Report [69] 5.2.2 The Acronem Report [74] 5.2.3 The Ignis Report [83] 5.2.4 The Ignis Certificates [87] 5.3 Marketing the HR Panel Product [93] 5.4 Kingspan's concerns about Pirmax's performance claims [99] 5.5 Kingspan's counter-marketing efforts [111] 5.6 Kingspan's misleading or deceptive conduct allegation [125] 5.7 Kingspan testing alerts [129] 5.8 Kingspan's testing of the HR Panel Product [134] 5.8.1 The Kingspan Exova Report [136] 5.8.2 The Barnett Report [142] 5.9 Project Shield and Sword [149] Part 6: The ISO3 Product [166] 6.1 The ISO3 Product reports [167] 6.1.1 The Pirmax Exova ISO3 Report [169] 6.2 Marketing the ISO3 Product [171] 6.3 Kingspan's concerns about ISO3 performance claims [174] 6.4 Kingspan's testing of the ISO3 Product [175] 6.4.1 The Kingspan Exova ISO3 Report [177] 6.4.2 The Barnett ISO3 Report [179] Part 7: The Australian Consumer Law claims [180] 7.1 Legislative scheme [180] 7.2 Relevant legal principles [184] 7.3 Pirmax's ACL claims [192] 7.3.1 Alleged misleading representations made by Kingspan [192] 7.3.1.1 Representation that Pirmax had no basis to claim group 1 classification [196] 7.3.1.2 Representation that the HR Panel Product was not compliant with relevant standards [201] 7.3.1.3 Representation that the HR Panel Product was not fit for purpose [203] 7.3.1.4 Representation that the HR Panel Product is unsafe and dangerous [205] 7.3.1.5 Representation about the independence of Dr Barnett [207] 7.3.1.6 Representation that the Kingspan Exova Report was an AS ISO 9705 test report [210] 7.3.2 Kingspan's defence to Pirmax's claims [214] 7.3.3 Consideration [227] 7.3.3.1 Did Kingspan make the representations alleged? [227] 7.3.3.2 Were Kingspan's representations false, misleading, or deceptive? [236] 7.3.3.3 Some other matters [276] 7.3.4 Conclusion on Pirmax's ACL claims [280] 7.4 Kingspan's ACL claims [281] 7.4.1 Alleged misleading representations made by Pirmax—HR Panel Product [281] 7.4.2 Pirmax's defence—HR Panel Product [285] 7.4.3 Consideration of HR Panel Product representations [293] 7.4.3.1 Did Pirmax make the representations alleged? [293] 7.4.3.2 Were the representations false, misleading or deceptive? [303] 7.4.3.3 Further observations on the evidence [313] 7.4.4 Alleged misleading representations made by Pirmax—ISO3 Product [323] 7.4.5 Pirmax defence—ISO3 Product [326] 7.4.6 Consideration [332] 7.4.6.1 Did Pirmax make the representations alleged? [332] 7.4.6.2 Were the representations false, misleading or deceptive? [339] 7.4.7 Conclusion on Kingspan's ACL claims [346] Part 8: Pirmax's injurious falsehood claim [350] 8.1 Summary [350] 8.2 Principles to be applied [351] 8.3 Alleged injurious falsehoods [354] 8.4 Kingspan's defence [358] 8.5 Consideration [362] Part 9: Relief [372] 9.1 Preliminary observations [376] 9.2 Injunctive relief [381] 9.3 Declaratory relief [386] 9.4 Relief to be granted [394] SNADEN J: Part 1: Overview 1 In early 2016, the applicant and cross-respondent ("Pirmax") entered the market for the manufacture and supply of rigid foam insulation products. Since that time, it relevantly manufactured two modified polyisocyanurate rigid thermal insulation products, to which I shall refer as the "HR Panel Product" (which it began manufacturing in or around 2016) and the "ISO3 Product" (which it began manufacturing in or around 2019). 2 The respondent and cross-claimant ("Kingspan") is the Australian subsidiary of Kingspan Group PLC, a large manufacturer of building products headquartered in Ireland. Kingspan has been manufacturing polyisocyanurate rigid thermal insulation products for over 40 years. It competes with Pirmax in the market for the supply of such products in Australia. 3 Pirmax brings the present proceeding alleging that Kingspan engaged in an unlawful campaign aimed at damaging Pirmax's business by means of untrue, public representations about the HR Panel Product. In particular, it alleges that Kingspan made untrue representations to the effect that the HR Panel Product failed to comply with certain requirements contained in the National Construction Code (the "NCC") concerning fire hazard properties and was, for that reason, unsafe (amongst other things). By certain elements of that campaign, Pirmax alleges that Kingspan (1) engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (comprising Schedule 2 to the Competition and Consumer Act 2010 (Cth); the "ACL") and (2) committed the tort of injurious falsehood. 4 By its cross-claim, Kingspan alleges that the marketing and technical materials that Pirmax produced and publicly disseminated contained untrue representations that overstated the extent to which the HR Panel Product and the ISO3 Product, respectively, complied with those same requirements in the NCC concerning fire hazard properties. The making of those representations, Kingspan alleges, similarly amounted to Pirmax engaging in misleading or deceptive conduct in contravention of the ACL. 5 Pirmax moves the court for declarations, injunctions, damages, interest and costs. On the first day of the trial, Kingspan informed the court that it would no longer pursue any claim for damages. It seeks only declarations, injunctions, and costs by way of relief in respect of its cross-claim. 6 For the reasons that follow, Pirmax's application must be dismissed and Kingspan's cross-claim must succeed. Orders will be made accordingly. Part 2: Building industry regulations 2.1 The National Construction Code 7 The proceeding turns largely on certain requirements of the NCC relating to the fire hazard properties of wall and ceiling linings. It is necessary to trace the regulatory origins of the NCC and its relevant provisions in some detail. 8 The introduction to the current iteration of the NCC, the NCC 2019, provides a helpful overview of the NCC and its scope. It states as follows: The NCC is Australia's primary set of technical design and construction provisions for buildings. As a performance-based code, it sets the minimum required level for the safety, health, amenity, accessibility and sustainability of certain buildings. It primarily applies to the design and construction of new buildings, and plumbing and drainage systems in new and existing buildings. In some cases it may also apply to structures associated with buildings and new building work or new plumbing and drainage work in existing buildings. The Australian Building Codes Board (ABCB), on behalf of the Australian Government and each State and Territory government, produces and maintains the NCC. When determining the content of the NCC, the ABCB seeks to— • ensure requirements have a rigorously tested rationale; and • effectively and proportionally address applicable issues; and • create benefits to society that outweigh costs; and • consider non-regulatory alternatives; and • consider the competitive effects of regulation; and • not be unnecessarily restrictive. The primary users of the NCC include architects, builders, plumbers, building surveyors, hydraulic consultants, engineers and other building and plumbing related professions and trades. 9 The NCC is published in three volumes: volumes 1 and 2 contain the Building Code of Australia (the "BCA"), while volume 3 contains the Plumbing Code of Australia. The BCA assumes statutory force in each state and territory, albeit in different ways. In Victoria, reg 10 of the Building Regulations 2018 (Vic) (which is made under the Building Act 1993 (Vic)), provides that "[t]he BCA is adopted by and forms part of these Regulations as modified by these Regulations". 10 The BCA is, then, to be construed according to ordinary principles; albeit with recognition that it is a technical document used by building practitioners on a day-to-day basis and, as such, is not drafted in the same way as an act of parliament: Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS631436T [2021] VSCA 72, [208] (Beach, Osborn JJA and Stynes AJA). 11 The NCC is typically revised every three years following a process of industry consultation and review (although, as will shortly become apparent, that process sometimes occurs more frequently). Principally, the dispute around which this proceeding revolves arises out of changes to the provisions concerning the testing of fire hazard properties from the 2015 version of the NCC (which took effect from 1 May 2015) to the 2016 version of the NCC (which took effect from 1 May 2016). Certain provisions of the NCC 2019 (which took effect from 1 May 2019) concerning fire hazard properties are also relevant to a claim made by Kingspan in respect of the ISO3 Product. 12 The fire resistance provisions are contained in volume 1 of the NCC, which is also volume 1 of the BCA. As volumes 1 and 2 of the NCC are also volumes 1 and 2 of the BCA, the parties in their written submissions and during the trial referred variously to "the NCC", "the BCA", "the NCC/BCA", or simply "the Code". In this judgment I shall refer to the "NCC" (or to "NCC 2015", "NCC 2016", and "NCC 2019", as applicable), although it is upon only a small number of provisions in volume one of each instrument that the matter turns. Capitalised terms not otherwise defined in this part adopt the meaning as defined in the relevant NCC. 2.2 NCC 2015 13 Section A of volume 1 of NCC 2015 was entitled "general provisions". It provided an overview of the NCC and its application, as well as the rules and instructions for interpreting and complying with it. Of present importance, it mapped out the various methods by which compliance with its requirements might be demonstrated. Those compliance pathways were introduced by Part A0 of NCC 2015, which provided, relevantly: A0.4 Compliance with the BCA A Building Solution will comply with the BCA if it satisfies the Performance Requirements. A0.5 Meeting the Performance Requirements Compliance with the Performance Requirements can only be achieved by— (a) complying with the Deemed-to-Satisfy Provisions; or (b) formulating an Alternative Solution which— (i) complies with the Performance Requirements; or (ii) is shown to be at least equivalent to the Deemed-to-Satisfy Provisions; or (c) a combination of (a) and (b). ... A0.7 Deemed-to-Satisfy Provisions A Building Solution which complies with the Deemed-to-Satisfy Provisions is deemed to comply with the Performance Requirements. … A0.9 Assessment Methods The following Assessment Methods, or any combination of them, can be used to determine that a Building Solution complies with the Performance Requirements: (a) Evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision as described in A2.2. (b) Verification Methods such as— (i) the Verifications Methods in the BCA; or (ii) such other Verification Methods as the appropriate authority accepts for determining compliance with the Performance Requirements. (c) Comparison with the Deemed-to-Satisfy Provisions. (d) Expert Judgement. 14 The present matter concerns only the Deemed-to-Satisfy Provisions of the NCC (which is to say that it does not concern the formulation of an "Alternative Solution"). 15 Part A2 of NCC 2015 relevantly provided as follows: A2.2 Evidence of suitability (a) Subject to A2.3 and A2.4, evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision may be in the form of one or a combination of the following: (i) A report issued by a Registered Testing Authority, showing that the material or form of construction has been submitted to the tests listed in the report, and setting out the results of those tests and any other relevant information that demonstrates its suitability for use in the building. (ii) A current Certificate of Conformity or a current Certificate of Accreditation. (iii) A certificate from a professional engineer or other appropriately qualified person which— (A) certifies that a material, design, or form of construction complies with the requirements of the BCA; and (B) sets out the basis on which it is given and the extent to which relevant specifications, rules, codes of practice or other publications have been relied upon. (iv) A current certificate issued by a product certification body that has been accredited by the Joint Accreditation System of Australia and New Zealand (JAS-ANZ). (v) * * * * * (vi) Any other form of documentary evidence that correctly describes the properties and performance of the material or form of construction and adequately demonstrates its suitability for use in the building. … (b) Any copy of documentary evidence submitted, must be a complete copy of the original report or document. 16 Against the background of those "general provisions", the remaining sections of the NCC 2015 contained the particular standards, assessment methods and specifications against which products were required to be tested, and the "Performance Requirements" that products had to satisfy, in order to achieve compliance with the NCC. 17 Section C of NCC 2015 was entitled "fire resistance". Unsurprisingly, it contained provisions concerning the required fire resistance qualities of various building applications. Relevantly, cl C1.0 of NCC 2015 (within Part C1, which was entitled "Fire Resistance and Stability") provided, in part, that: (a) Where a Building Solution is proposed to comply with the Deemed-to-Satisfy Provisions, Performance Requirements CP1 to CP9 are satisfied by complying with— (i) C1.1 to C1.12… … 18 In turn, cl C1.10 was entitled "Fire hazard properties" and provided, relevantly, as follows: (a) The fire hazard properties of the following linings, materials and assemblies in a Class 2 to 9 building must comply with Specification C1.10: … (ii) Wall linings and ceiling linings. … 19 Specification C1.10 set out some requirements concerning the fire hazard properties of linings, materials and assemblies. The requirements for wall linings and ceiling linings (which includes insulation products when used as a lining), in particular, were contained in cl. 4 of Specification C1.10, which relevantly provided as follows: 4. Wall and ceiling linings (a) For the purpose of this Clause, the group number of a material is determined by either— (i) physical testing in accordance with AS ISO 9705; or … (b) The group number of a material is as follows when tested or predicted in accordance with sub-clause (a): (i) A Group 1 material is one that does not reach flashover when exposed to 100 kW for 600 seconds followed by exposure to 300 kW for 600 seconds. (ii) A Group 2 material is one that reaches flashover following exposure to 300 kW within 600 seconds after not reaching flashover when exposed to 100 kW for 600 seconds. (iii) A Group 3 material is one that reaches flashover in more than 120 seconds but within 600 seconds when exposed to 100 kW. (iv) A Group 4 material is one that reaches flashover within 120 seconds when exposed to 100 kW. (b) A material used as a finish, surface, lining or attachment to a wall or ceiling must be a Group 1, Group 2 or Group 3 material used in accordance with Table 3… (Emphasis added) 20 "Flashover" is (and was) defined in the NCC as the point at which the total heat release rate in the test room reaches 1000 kW. As can be seen, a group number of "1" applies to linings that achieve the highest degree of fire resistance (flashover is not reached during 20 minutes of testing), while a group number of 4 designates the lowest degree of fire resistance (flashover is reached within two minutes of testing). 21 Table 3, referred to in clause 4(c) of Specification C1.10, then set out the permitted uses for wall and ceiling linings based on their group numbers. Linings that achieved a group number of "1" could be used in all applications listed in the table, while linings with a group number of "3" could be used in a more limited range of applications. Wall and ceiling linings with a group number of "4" were not permitted to be used at all. Quite clearly, then, the group number that wall and ceiling linings were able to achieve was a matter of some commercial significance. 22 As can be seen, demonstrating compliance with the NCC is not straightforward. It involves several different potential pathways, numerous defined terms and various modes of providing evidence of compliance. Nonetheless—and at the risk of oversimplification—what emerges from the above survey is that wall and ceiling linings were required, in order that they might comply with the Deemed-to-Satisfy Provisions of NCC 2015 relating to fire resistance (and, thereby, with the Performance Requirements and the NCC more broadly), to attain a group number of "1", "2" or "3" when tested in accordance with AS ISO 9705. 2.3 AS ISO 9705 23 AS ISO 9705 or AS ISO 9705-2003 is an instrument produced or endorsed by Standards Australia, a non-government body that produces and endorses such instruments. It is entitled "Fire tests—Full-scale room test for surface products". Clause 1 of AS ISO 9705 states that it "specifies a test method that simulates a fire that under well ventilated conditions starts in a corner of a small room with a single open doorway", and that a test performed in accordance with that method "provides data for the early stages of a fire from ignition up to flashover". 24 According to cl 5.1 of ASO ISO 9705, a "test room" within which a test under that standard is conducted must consist of four walls at right angles, a floor and a ceiling (the dimensions of which are specified). Many of the remaining sections of the standard traverse highly technical matters, including (amongst other things) the ignition source to be used for the test, the heat flux instrumentation in the fire test room, and the means of conducting a gas analysis. Of relevance, cl 11.1 of AS ISO 9705 provides that: 11.1 The product to be tested shall, as far as possible, be mounted [in the fire test room] in the same way as in practical use. NOTE 7 In the standard specimen configuration, three walls and the ceiling are covered with the product. Alternative specimen configurations are given in annex G. 25 Annex G, in turn, provides as follows: NOTE 22 Different specimen configurations are possible depending on the practical use of the product under test and the specific situation that is to be studied. G.1 Standard specimen configuration In order to achieve comparable test data between laboratories, it is recommended that the walls (excluding the wall containing the doorway) and the ceiling are covered with the product. This is designated as the standard specimen configuration. G.2 Alternative specimen configuration Other possibilities are to test the product covering only the walls and having standard ceiling materials, or to test the product covering only the ceiling and having standard wall materials. The standard materials should then be chosen in accordance with 11.4. It is also possible to test combinations of different wall and ceiling products in order to evaluate specific scenarios. 26 In short, although the "standard specimen configuration" for testing in accordance AS ISO 9705 involves the application of a test product to three walls and the ceiling of the test room, AS ISO 9705 also contemplates tests that involve the application of a test product only to the ceiling or only to the walls of the test room. That flexibility assumes some significance presently. 2.4 NCC 2016 27 Although Section A of NCC 2016 contained some minor structural and terminological changes from NCC 2015, the compliance pathways there set out remained, in substance, unchanged. For present purposes, the compliance pathways set out in NCC 2016 were the same as those for which NCC 2015 provided: compliance was achieved by satisfying the Performance Requirements, which could, in turn, be satisfied by a Performance Solution (called an "Alternative Solution" in NCC 2015) or a Deemed-to-Satisfy Solution (being a solution that complied with the Deemed-to-Satisfy Provisions). As with NCC 2015, if a product complied with those provisions, it was deemed to comply with the Performance Requirements (and, therefore, the NCC). 28 Like NCC 2015, Section C of NCC 2016 contained the Deemed-to-Satisfy Provisions that related to fire resistance. Clause C1.0 provided, relevantly, that: (a) Where a Deemed-to-Satisfy Solution is proposed, Performance Requirements CP1 to CP9 are satisfied by complying with— (i) C1.1 to C1.13… 29 Clause C1.10 was in the same terms as in NCC 2015. Like its predecessor, it provided that the wall and ceiling linings in a Class 2 to 9 building must comply with Specification C1.10. Specification C1.10 in NCC 2016, however, required different testing to that mandated by its predecessor. It provided, relevantly: (a) A wall or ceiling lining system must comply with the group number specified in Table 3… (b) A group number of a wall or ceiling lining and the smoke growth rate index or average specific extinction area must be determined in accordance with AS 5637.1. (Emphasis added) 30 Table 3 in Specification C1.10 of NCC 2016 was identical to its counterpart in NCC 2015. Accordingly, in order to comply with the Deemed-to-Satisfy Provisions of NCC 2016 relating to fire resistance, a wall or ceiling lining was still required to have a group number of 1, 2 or 3; but that group number must have been determined by testing undertaken in accordance with AS 5637.1. 2.5 AS 5637.1 31 AS 5637.1 is an Australian Standard (also produced or endorsed by Standards Australia) entitled "Determination of fire hazard properties—Part 1: Wall and ceiling linings". It sets out the procedure for the assessment of various properties of internal wall and ceiling linings and, relevantly, allows for the determination of a lining's group number. It incorporates AS ISO 9705-2003 as a test method that may be used to determine a product's group number; but it imposes some additional requirements. 32 Under the heading "Determining group numbers", cl 4.3 of AS 5637.1 reads: The group number of a material shall be determined by either- (a) physical testing in accordance with AS ISO 9705-2003; or (b) if the material has a confirmed correlation, prediction in accordance with Clause 4.4 using data obtained by testing the material at 50 kW/m2 irradiance in the horizontal orientation with edge frame in accordance with ISO 5660-1 or AS/NZS 3837, as appropriate to the test conducted. 33 The following section is entitled "testing for the purpose of determining group number, smograrc and ASEA". It provides as follows: 5.1 General The AS ISO 9705—2003 room test shall be used for determining a group number and calculating SMOGRARC unless the material is listed in Clause 5.3.2 as having a correlation. … 5.2 Testing to AS ISO 9705—2003 5.2.1 Specimens When testing for the purposes of determining group numbers and SMOGRARC, the specimen shall be affixed to three walls and the ceiling, described in AS ISO 9705-2003 as the standard specimen configuration. Tests of walls or ceilings alone shall not be used for determining group number or SMOGRARC. (Emphasis added) 34 AS 5637.1, then, mandates testing in accordance with AS ISO 9705 for the purpose of determining a product's group number; but it removes the flexibility previously afforded by Annex G of AS ISO 9705, such that a product cannot be tested in accordance with AS 5637.1 if it covers only the ceiling or only the walls of the room in which it is tested. Instead, the product must cover three walls and the ceiling of the test room. 35 Appendix C to AS 5637.1 is also of some significance. It provides, relevantly, as follows: Where a material or system has been tested in either the room test or the cone calorimeter, the range of applicability will depend on many factors. The factors that need to be considered will not necessarily be the same for both tests. Factors that should be considered are the following: … (b) Colour. … 2.6 The NCC 2016 "Transitional Provision" 36 Specification A1.3 of NCC 2016 was entitled "documents adopted by reference". It contained a "schedule of referenced documents"—that is, of various documents referred to in the operative provisions of the NCC (the majority of which are Australian Standards). Alongside the entry for AS 5637.1 in the schedule, there was a "note" that assumes central significance in this matter. That entry appeared as follows: No. Date Title BCA Clause(s) AS 5637.1 2015 Determination of fire hazard properties Spec C1.10 Part 1 Wall and ceiling linings [Note: Test reports indicating the group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019.] 37 During the trial and in the parties' written submissions, this note was referred to as the "transition(al) provision" or the "grandfathering provision" (hereafter, the "Transitional Provision"). Its effect is apparent enough: group numbers that were determined by testing that was undertaken under versions of the BCA that applied prior to 1 May 2016 (including NCC 2015) remained validly determined until 1 May 2019, notwithstanding the more stringent testing requirements to which NCC 2016 gave effect. 2.7 NCC 2019 38 The requirements for determining a group number under NCC 2019 are the same as those that were contained in NCC 2016 (save that there is no equivalent of the Transitional Provision). 39 As will be explained later in these reasons, the resolution of Kingspan's cross-claim in respect of the ISO3 Product turns on the construction of C1.10 of NCC 2019. That being so, it is prudent to set out its relevant parts. C1.10 of NCC 2019 reads as follows: (a) The fire hazard properties of the following linings, materials and assemblies in a Class 2 to 9 building must comply with Specification C1.10: … (ii) Wall linings and ceiling linings. … … (c) The requirements of (a) do not apply to a material or assembly if it is— … (viii) a paint, varnish, lacquer or similar finish, other than nitro-cellulose lacquer… Part 3: Background and evidence 40 The proceeding was commenced by originating application dated 17 May 2019, by which Pirmax also claimed interlocutory relief. In particular, Pirmax sought various forms of injunctive relief in respect of certain materials published or conveyed by Kingspan (which materials will be described in detail later in these reasons). 41 Given the urgent nature of the interlocutory relief sought by Pirmax, the proceeding first came before Davies J in her capacity as duty judge and, subsequently, Middleton J in that same capacity. Each judge made standard procedural orders, including orders for the exchange of concise statements, affidavits, and expert reports. The proceeding was then allocated to my docket. Kingspan's cross-claim was commenced by notice dated 7 June 2019. 42 The trial of the proceeding commenced on 28 June 2021 and ran across six days. The parties filed comprehensive written submissions, upon which they elaborated orally at a later hearing. 43 The court received written and/or oral testimony from 11 witnesses. Pirmax led evidence from: (1) Mr Benjamin Robert Alan Hughes-Brown, a fire safety engineer and director of Ignis Solutions Pty Ltd, a fire safety consultancy firm, and Ignis Labs Pty Ltd, a fire safety test facility; (2) Mr Jeffrey Stephen Lewinsohn, Pirmax's managing director and majority shareholder; (3) Mr Dale Ronald Alan Bradley, the director of Greenspec Solutions Pty Ltd, a supplier and installer of thermal and acoustic insulation products, including those manufactured by Pirmax; (4) Dr Patrick Anthony Enright, a fire safety engineer and registered building practitioner, and the director of Enright Consulting Pty Ltd; (5) Mr Travis Scott McCallum, the commercial director for Greater Asia for Huntsman Polyurethanes; (6) Mr Steven John Ashton, a web design and computer repair technician who performed work as a contractor for Pirmax; (7) Mr Stephen Alan Kip, a fire safety engineer and building surveyor, and the managing director of SKIP Consulting Pty Ltd; and (8) Mr Owain Stone, a partner in forensic accounting at Korda Mentha. 44 Kingspan led evidence from: (1) Mr Scott Ian Edgeworth Gibson, the managing director of Kingspan; (2) Dr Jonathan Ross Barnett, a fire safety engineer and the managing director of Basic Expert Pty Ltd; (3) Mr Keith Robert Anderson, the "Technical R&D and Accreditations Manager" of Kingspan; (4) Mr Shane Andrew Leonard, a registered building surveyor and a director of Philp Chun & Associates Pty Ltd; and (5) Ms Dawna Kathleen Wright, a senior managing director in forensic accounting at FTI Consulting. 45 Mr Hughes-Brown and Mr McCallum were called to give evidence in answer to subpoenas issued to each of them at Pirmax's request. The remaining lay witnesses gave evidence by affidavit (or, in Mr Lewinsohn's case, three affidavits; and, in Mr Gibson's, two) and, with the exception of Mr Ashton, all were cross-examined. 46 Each of the expert witnesses provided their evidence by way of expert report (Dr Barnett produced four reports and made two affidavits; Dr Enright produced two reports, and the other expert witnesses each produced one report). Some of the expert witnesses gave evidence in conclaves: Mr Kip gave evidence concurrently with Mr Leonard, and Mr Stone gave evidence concurrently with Ms Wright. To facilitate that process, Mr Kip and Mr Leonard also produced a joint report, as did Mr Stone and Ms Wright. Dr Barnett and Dr Enright were cross examined on their evidence in the conventional manner. 47 In advance of the trial, each party filed a document setting out in tabular form its objections to the various affidavits and expert reports relied upon by the other party. In turn, each party provided a response to the objections that were raised, including, where appropriate, concessions that certain aspects of the evidence were no longer relied upon. Rather than ruling on each objection contained in the parties' respective tables, those objections (and any responses to them) were instead treated as submissions as to the weight to be given to those parts of the evidence to which objection was taken. 48 The day before the trial commenced, Pirmax also filed a document entitled "pirmax's outline of objection to admissibility of dr barnett's evidence". In summary, Pirmax objects to the whole of Dr Barnett's evidence on several bases, each of which revolves around Dr Barnett's alleged lack of independence—in particular, Pirmax asserts that Dr Barnett was an advocate or "hired gun" for Kingspan; and, relatedly, that any conformity of Dr Barnett's opinion with Kingspan's interests was the product of his lack of independence. That being so, Pirmax submits that Dr Barnett's evidence was inadmissible under s 79 of the Evidence Act 1995 (Cth) (the "Evidence Act"); or, alternatively, that it ought to be excluded pursuant to s 135 of that act. 49 In its amended concise statement, Pirmax alleges that Kingspan made misleading or deceptive representations concerning Dr Barnett's independence. Accordingly, the issue of Dr Barnett's independence (or lack thereof) will be addressed as a preliminary matter. For reasons to which I shall shortly return, it suffices to record that I do not consider Dr Barnett's evidence to be inadmissible under s 79 of the Evidence Act (or, more accurately, under s 76); nor do I consider that it ought to be excluded under s 135 of the Evidence Act. 50 Before the last day of the trial, the parties undertook the process of "filleting" the court book that had previously been provided to the court (and upon which the parties had relied up until that point). That process was apparently undertaken in order to remove documents that the parties had deemed unnecessary, such as those that were irrelevant or appeared in duplicate. That filleted court book was referred to as the "consolidated tender bundle", and was tendered on the last day of the trial. Part 4: Dr Barnett's evidence 51 Pirmax objects to the whole of Dr Barnett's evidence on the basis that he lacked independence, and was instead an advocate or "hired gun" for Kingspan. Pirmax urges the court to find that Dr Barnett's evidence was inadmissible under s 79 of the Evidence Act; or, alternatively, that it ought to be excluded pursuant to s 135 of that act. 52 Section 76(1) of the Evidence Act provides as follows: Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. 53 Section 79(1) contains an exception to that rule. It reads: If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 54 Section 135 of the Evidence Act is entitled "[g]eneral discretion to exclude evidence". It provides as follows: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 55 Pirmax submits that aspects of Dr Barnett's conduct throughout his engagement by Kingspan's solicitors was inconsistent with the Expert Evidence Practice Note (GPN-EXPT) (the "Practice Note") and the Harmonised Expert Witness Code of Conduct (the "Code of Conduct"), by each of which he was required to abide. In turn, that was said to amount to conduct inconsistent with pt 23 of the Federal Court Rules 2011 (Cth) (the "Rules"). Pirmax submits that "[n]on-compliance with the [Rules] may make it more likely that s 79 is not satisfied, or that s 135 ought to be engaged". 56 I do not consider that Dr Barnett's evidence should be excluded for want of compliance with the Practice Note or the Code of Conduct. I accept that his evidence was at least substantially based upon his extensive knowledge and experience in the field of fire safety. I do not accept that, when he gave his evidence, he did so as an advocate or "hired gun". His evidence was given consistently with the requirements of pt 23 of the Rules; and, even if it wasn't, its admissibility is governed in any event by the Evidence Act, which does not require untrammelled independence or impartiality (however preferable those qualities plainly are): Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) (2012) 202 FCR 564, 570-571 [35]-[46] ("Ananda Marga"; Dodds-Streeton J); Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622, [29]-[36] (Wigney J). 57 Pirmax did not attempt to establish that Dr Barnett's evidence failed to meet the requirements of s 79 of the Evidence Act. Rather, it asserts that the present circumstances warranted the approach that Mortimer J took in Guy v Crown Melbourne Ltd [2017] FCA 1104 ("Crown"). There, having reviewed the relevant provisions of pt 23 of the Rules, the Practice Note, and the Code of Conduct, Mortimer J made the following observation (at [50]): …at a minimum…there must be substantial, at least purportedly substantial, compliance with Part 23, or a capacity substantially to comply with Part 23, by both a party and that party's proposed witness, including a preparedness and capacity to acknowledge the necessity for an expert witness to be independent in the sense set out in the authorities, the Practice Note and the Harmonised Code. 58 Her Honour found (at [51]-[55]) that there had been "no attempt to comply with Part 23 in the first place" and, (after distinguishing the facts that were before her Honour from those faced by Dodds-Stretton J in Ananda Marga) it followed, "no compliance at all" with that part by the expert witnesses. More importantly, her Honour found (at [56]): In the present situation, quite unlike the Ananda Marga case, and given what he has already deposed, I fail to see how Dr Livingstone could promise to comply with and recognise the matters required by…Part 23, the Practice Note and the Harmonised Code. He is plainly well aware, and prepared to state, that he is an advocate for the cause of the applicant. I add I have no reason to believe Dr Livingstone would even consider attempting to proffer the declarations of independence required, or the acknowledgments of the need for independence. His candidness in his affidavit suggests he would not. I should also make it clear that there is no inherent criticism to be made of Dr Livingstone in the position he has taken in support of the applicant's cause. The legal question is how that position affects his capacity to comply with Part 23 and the underlying core requirements for expert evidence. 59 In light of the conclusions that I have reached regarding Dr Barnett's independence, and Dr Barnett's statements that he had read and understood the Practice Note and the Code of Conduct, the circumstances confronting Mortimer J in Crown are distinguishable from those that arise here. 60 As to s 135 of the Evidence Act, Dr Barnett's evidence plainly holds at least some probative value (even if the resolution of this matter does not turn solely upon it). The question then, is whether that value is substantially outweighed by any unfair prejudice that the receipt of that evidence would visit upon Pirmax. It is not. The prejudice to Pirmax, though obvious, is not unfair: Dr Barnett was not a partial expert, nor one whose independence from Kingspan was improperly or impermissibly compromised. But, even if he was, his evidence remained of some significance. I do not consider that any unfair prejudice attending its receipt substantially outweighs that probative value. Part 5: The HR panel product 5.1 Pirmax enters the market for the supply of rigid foam insulation products 61 Pirmax was established by Mr Lewinsohn in 2015. As has already been mentioned, it entered the market for the manufacture and supply of rigid foam insulation products in early 2016. Since then, it has competed with Kingspan in that market. 62 Pirmax manufactures all of its products from facilities in Braeside, in Melbourne's south-east. For the most part, Pirmax sells its products through distributors, which then supply its products to customers (typically builders and other participants in the building industry). Pirmax also has several "direct accounts" with customers that it supplies directly. Pirmax's products are used in commercial, industrial, and domestic building projects. 63 The HR Panel Product is a polyisocyanurate rigid thermal panel product. It comprises a polyisocyanurate core—made from Daltofoam MR 40788, a polyol blend, and Suprasec 5005, a diisocyante-diphenylmethane-based composition—with a layer of aluminium foil bonded to the two largest external faces of that core (in other words, the core is "sandwiched between two layers of foil autohesively bonded to the insulation core during manufacture"). 64 Mr Lewinsohn gave evidence that, sometime in 2015, he approached Huntsman Polyurethanes (Australia) Pty Ltd ("Huntsman"), a supplier of polyurethane chemicals, in order that Pirmax might secure Huntsman's assistance in developing its products. Since then, Pirmax has sourced all of its polyol and isocyanate from Huntsman. 65 The HR Panel Product is produced in different colour finishes (silver, white or black, although Mr Lewinsohn gave evidence that "99 per cent of Pirmax's orders were for silver"). It is available in various thicknesses. 5.2 The HR Panel Product reports 66 Mr Lewinsohn gave evidence that, in order to ensure that Pirmax complied with applicable regulations (including the fire resistance requirements contained in the NCC), it arranged to have its products "tested by appropriately qualified and accredited testing facilities", and that it "engaged independent fire engineers and other consultants" to provide all necessary compliance assessments and reports. 67 Several of those reports and related materials relied upon by Pirmax in respect of the HR Panel Product were in evidence and bear noting. They include: (a) a test report by Exova Warringtonfire Aus Pty Ltd ("Exova") entitled "Fire test of a ceiling lined with PIR Insulation panels, tested in general accordance with AS ISO 9705-2003" first issued on 9 May 2016 (and subsequently revised on 26 May 2016, 16 June 2016, and 31 January 2017) (the "Pirmax Exova Report"); (b) a report by Acronem Consulting Australia Pty Ltd ("Acronem") entitled "Pirmax, PIR Insulation Panel – NCC 2016 Fire Hazard Properties Assessment for Ceiling Only Applications" dated 30 May 2016 and revised on 2 February 2017 (the "Acronem Report"); (c) a report by Ignis Solutions Pty Ltd ("Ignis") entitled "PIR MAX Insulation – Product Evaluation and Compliance" first issued for comment on 4 November 2018, finalised on 25 November 2018, and revised on 8 January 2019, 21 January 2019, 18 April 2019, 26 April 2019, 28 April 2019 and 17 May 2019 (the "Ignis Report"); (d) a test report by CSIRO entitled "Thermal transmission properties of Pirmax PIR foam panel insulation" dated 22 March 2017; (e) test reports by the Australian Wool Testing Authority Ltd (the "AWTA") issued on 13 November 2015, 11 February 2016, 9 March 2017, 29 March 2018, 26 June 2018, 18 June 2019, 17 March 2020 and 18 March 2020; (f) a series of "Engineering Evaluation Certificates" issued by Ignis dated 11 November 2016, 14 April 2017, 1 May 2018, 21 November 2018, 25 November 2018, 8 January 2019, 21 January 2019, 18 April 2019, 26 April 2019, 7 May 2019 and 17 June 2019 (the "Ignis Certificates"); and (g) a report by Ignis entitled "Pirmax HR Insulation Panel Product Compliance Review" dated 22 May 2019. 68 It is unnecessary to describe in detail all of the various reports that were in evidence. There were many of them—several of which appeared in the consolidated tender bundle in numerous versions (each incorporating amendments or revisions to the one that preceded it). Some of those reports assume significance. In particular, in support of its claims that the HR Panel Product achieved a group 1 rating in silver and white finish, and that it achieved a group 3 rating in black finish, Pirmax relied upon the Pirmax Exova Report, the Acronem Report, the Ignis Certificates, and the Ignis Report. Attention will now turn to each of those documents. 5.2.1 The Pirmax Exova Report 69 In or around early 2016, Huntsman on behalf of Pirmax engaged the CSIRO to carry out a fire test on the HR Panel Product in accordance with AS ISO 9705-2003. At the time, however, Exova had the only testing facility approved by the National Association of Testing Authorities (hereafter, "NATA"). Accordingly, the CSIRO arranged for Exova to carry out the test instead. Exova carried out the test on 14 April 2016, and produced the Pirmax Exova Report on 9 May 2016 (with revisions coming later, as set out at [67(a)]). 70 The cover page to the Pirmax Exova Report stated that it is a "test report", and recorded the "Test Date" as 14 April 2016. As recorded in its full title, the test to which the report relates is a "[f]ire test of a ceiling lined with PIR insulation panels, tested in general accordance with AS ISO 9705-2003". The "Report Sponsor" is listed as the CSIRO. The second page of the Pirmax Exova Report records that it was first issued on 9 May 2016, and was re-issued three times, with each further issue correcting typographical errors. 71 Under the heading "test assembly", the Pirmax Exova Report described the test as follows: The test assembly comprised a fire test room whose ceiling was lined with the material being subjected to the test. The fire test room comprised of studwork walls and ceiling lined with plywood and two layers of 16 mm thick fire grade plaster board on the internal side. When unlined the fire test room had the internal dimensions of 3600 mm by 2400 mm by 2400 mm in height. The short wall opposite the ignition source had a centrally located doorway opening 800 mm wide by 2000 mm in height. The room was lined with the sample material on the ceiling only. 72 Under the heading "test procedure", the report stated: STATEMENT OF COMPLIANCE The test was performed in general accordance with the requirements of AS ISO 9705-2003. The test procedure was subject to the variations below. VARIATIONS TO TEST METHOD … At the request of the client the specimen was not installed in strict accordance with the standard installation method in AS ISO 9705 — 2003 (wall and ceiling lined) rather a ceiling only installation was undertaken. 73 The Pirmax Exova Report then described, in some detail, various aspects of the test procedure that was followed, and the test measurements that were recorded. Under the heading "test results", the report stated as follows: The peak heat release rate determined during the test was 831 kW. Classification Exova Warringtonfire Aus is unwilling to recommend that the data obtained from this test is suitable for the determination of group number in accordance with the regulatory requirements of Clause C1.10 of NCC (BCA). 5.2.2 The Acronem Report 74 The Acronem Report was prepared by Dr Cameron Chick, and approved by Mr Hughes-Brown. It is not a test report; Acronem did not perform any kind of test on the HR Panel Product about which it reported. Rather, the Acronem Report is Acronem's review and analysis of the Pirmax Exova Report, upon which it purports to attribute to the HR Panel Product a group number for NCC purposes. It was initially issued on 30 May 2016, with a revised version issued on 2 February 2017 (which incorporated the various revisions that had been made to the Pirmax Exova Report). 75 As the Acronem Report recorded, its purpose was: To perform an assessment of the fire hazard properties of the [HR Panel Product] ceiling lining system to satisfy the National Construction Code 2016, Volume One, Building Code of Australia (NCC-BCA), Clause C1.10-4 requirements for: - Group number, and - Smoke Growth Rate Index (SMOGRARC). 76 The Acronem Report recorded as follows how that assessment was to be (and was) made: The assessment is made on an analysis of relevant test data compared with the requirements of the NCC-BCA as presented in the following documents: - [the Pirmax Exova Report]. - National Construction Code 2016, Volume 1, Building Code of Australia, Class 2 to 9 Buildings. - AS 5637.1:2015, Determination of fire hazard properties. The assessment addresses the Group number and SMOGRARC of: - [the HR Panel Product] when installed as a ceiling lining system as tested in [the Pirmax Exova Report]. The assessment is valid subject to the conditions and limitations outlined herein. It must not be interpreted as encompassing any other matter or product. This assessment specifically excludes any application where [the HR Panel Product] is installed as a wall lining. 77 Under the heading "NCC 2016, Volume One, BCA Relevant Requirements", the report stated: As per NCC-BCA Part A1, fire hazard properties indicate how a material or assembly behaves under specific fire test conditions. The fire hazard properties relevant to this assessment include Group number and smoke growth rate index (SMOGRARC). These fire hazard properties are assessed in accordance with A0.2(b) through compliance with the deemed to satisfy requirements. Evidence of suitability in accordance with A2.2(a) is provided through the combination of: (i) A report issued by a registered Testing Authority, showing that the material or form of construction has been submitted to the tests listed in the report, and setting out the results of those tests and any other relevant information that demonstrates its suitability for use in the building. Means of compliance: [the Pirmax Exova Report]. (iii) [sic] A certificate from a professional engineer or other appropriately qualified person which— (A) certifies that a material, design or form of construction complies with the requirements of the BCA; and (B) sets out the basis on which it is given and the extent to which relevant specifications, rules codes of practice or other publications have been relied upon. Means of compliance: This report which has been verified by a qualified Fire Safety Engineer listed on the Australian 'National Professional Engineering Register' for Fire Safety Engineering. In accordance with A2.4(c), group number or smoke growth rate index (SMOGRARC) has been determined in accordance with Specification C1.10, Clause 4(b). 78 It is apparent, then, that the Acronem Report was intended to serve as a certificate of the kind described in A2.2(a)(iii) of NCC 2016 and, when read in conjunction with the Pirmax Exova Report, to provide evidence that the HR Panel Product satisfied C1.10 (a Deemed-to-Satisfy Provision). 79 Under the heading "Group Number and Smoke Growth Rate Index", the Acronem Report further provided, relevantly: … C1.10 requires the fire hazard properties of the ceiling linings, materials and assemblies in a Class 2 to 9 building to comply with Specification C1.10. Specification C1.10 Clause 4(b) requires the group number and smoke growth rate index of a ceiling lining system to be determined in accordance with AS 5637.1. Specification A1.3 lists documents adopted by reference including the new reference to AS 5637.1 which incorporates the following transitional note, "Test reports indicating a group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019". Whilst AS 5637.1, Clause 5.2.1 identifies specific specimen requirements for AS ISO 9705-2003, the NCC 2016, Volume One, Building Code of Australia, Specification A1.3 reference above makes provision for the validity of test reports determined under previous versions of the BCA applicable prior to 1 May 2016 until 1 May 2019. … The [HR Panel Product] lining system was mounted to the ceiling of the test chamber in accordance with AS ISO 9705, G 2 Alternative specimen configuration, "Other possibilities are… to test the product covering only the ceiling and having standard wall materials.", rather than G.1 Standard specimen configuration (ceiling and walls). AS ISO 9705-2003, Note 22 identifies "Different specimen configurations are possible depending on the practical use of the product under test and the specific situation that is to be studied." … The peak heat release rate determined during the test was 0.831 (MW). The test did not reach flashover and supports a Group 1 rating of the ceiling lining system subject to the limitations of use detailed in Section 7. 80 The Acronem Report concluded: The ceiling lining system has been tested in accordance with G.2 of AS ISO 9705-2003, with the product covering only the ceiling and having non-combustible wall materials. The test results for the [HR Panel Product] ceiling lining system support a Group 1 rating and Smoke Growth Rate Index of 21.0 (m2/s2 x 1000) subject to the limitations of use detailed in Section 7. This assessment is based on the test report [i.e. the Pirmax Exova Report] and documentation listed. Whilst the responsibility for the accuracy and applicability of the test and report remains with their authors, I am of the opinion that such test and report have been prepared, controlled and reviewed on sound basis. 81 Section 7, "Validity", then recorded the limitations alluded to above. They include that the assessment "specifically excludes any application where [the HR Panel Product] is installed as a wall lining". 82 Pirmax asserts that the Pirmax Exova Report when read together with the Acronem Report satisfied the evidence of suitability requirements of NCC 2016, and thereby enabled the determination of a group number for the HR Panel Product when installed as a ceiling lining. 5.2.3 The Ignis Report 83 Pirmax also places reliance on the Ignis Report, which was written and authorised by Mr Hughes-Brown. The stated purpose of the Ignis Report was: …to report the applicable use and compliance of the various [HR Panel Products] against the requirements of the National Construction Code – Volume One – Building Code of Australia, 2015, 2016, 2016 Amendment 1 (BCA)… 84 Like the Acronem Report, the Ignis Report was not a test report, and was instead intended to serve as a certificate from a professional engineer as contemplated by cl A2.2(a)(iii) of the NCC. The report stated, relevantly, that the HR Panel Product has been evaluated and considered to comply with the NCC for use on internal ceilings as soffit lining (being the use addressed in the Pirmax Exova Report and the Acronem Report). The Ignis Report also stated that the HR Panel Product complied with the NCC when used within the wall cavity for internal and external walls and within external panel wall stud frames (that is, not as a lining). 85 Under the heading "ceiling soffit lining – deemed to satisfy provisions" the Ignis Report relevantly recorded: 3.1 Introduction BCA Clause C1.10 as well as BCA Specification C1.10 sets the requirements of a ceiling soffit lining to be evaluated in accordance with AS 5637 and achieve a required Group number for the respective location. 3.2 Testing, Evaluation and compliance The [HR Panel Product] with a silver finish has been tested by Exova Warrington in accordance with AS ISO 9705 in a soffit insulation with the following results demonstrating a Group 1 classification. Internal Ceiling soffit lining – Silver/White finish BCA Clause Test Report Clause C1.10, Specification C1.10 Clause 4 EWF 42119200.1 09.05.16 AS ISO 9705-2003 Full Scale Room Test (soffit only) Group number 1 SMOGRARC 49 m2s-2 x 1000 The [HR Panel Product] has been tested by AWTA in accordance with AS/NZS 3837:1998. Based on the multi-layered approach under Clause 5.4 of AS 5637.1:2015 the combustible component being the core has been tested. The results demonstrate a Group 3 classification and can be used in sprinklered areas of building where a Group 3 classification is permitted under the BCA. Internal Ceiling soffit lining – Silver/White finish BCA Clause Test Report Clause C1.10, Specification C1.10 Clause 4 AWTA 18-001500 29.03.18 AS/NZS 3837 1998 Cone Calorimeter Group number 3 SMOGRARC 278.5 m2s-2 x 1000 The above results are applicable and compliant to the BCA Deemed to Satisfy requirements under the National Construction Code – Volume One – Building Code of Australia – 2015, 2016 and 2016 Amendment 1. 86 Under the heading "fire safety summary" the Ignis Report concluded: The above evaluation has considered the use of the [HR Panel Product] in three applications: 1. Ceiling soffit application exposed or concealed 2. Internal wall cavity insulation 3. External wall cavity insulation or internal lining of external concrete wall The use of the [HR Panel Product] with a silver or white face in application 1 and 2 above comply with the requirements of the BCA Deemed to Satisfy Provisions under current conditions for the application within sprinklered or non-sprinklered buildings where a Group 1 material is permitted. The black faced material is permitted to be only used in sprinklered protected buildings were a Group 3 material is permitted. Table 1 of BCA Specification A1.3 details that test reports indicating the group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019. 5.2.4 The Ignis Certificates 87 As already recorded, in evidence also was a series of certificates issued by Ignis in respect of the HR Panel Product. Each of the Ignis Certificates was described as an "Engineering Certificate" or an "Engineering Evaluation Certificate". 88 Mr Hughes-Brown gave evidence that the purpose of each certificate was to provide, in respect of the HR Panel Product, a "succinct snapshot…in a single document" of the applicable clauses and performance criteria in the NCC, to demonstrate compliance with the NCC, and to set out any limitations in respect of the product. He described it as "a summary or reduced detail report or certificate" based on the Ignis Report, and stated that it "provide[d] an overview…the reader still needs to go to [the Ignis Report] for further details of justification". 89 Taking the certificate issued on 21 January 2019 as an example, its purpose is recorded as follows: The purpose of this Certificate is to document the applicable use and compliance of the [HR Panel Product] against the requirements of [NCC 2016] for insulation to be used as a[n] internal soffit lining. The relevant installation is as per the attached installation detail provided by PIRMAX. This certificate is to be read in conjunction with [the Ignis Report]. 90 Like the Ignis Report, each certificate was intended to serve "as a certificate from a professional fire engineer in accordance with Clause A2.2(a)(v) of [NCC 2016 Amendment 1]". After describing the HR Panel Product and the various formats in which it was available, the certificate continued: Scope of Use • [the HR Panel Product] has been evaluated and considered to comply with the requirements of the BCA in the following applications: • Use on internal ceilings as a soffit lining (being exposed or concealed) Limitation • Within Australia, The Silver and White [HR Panel Product] can be used as an internal lining to ceilings where Group 1 products are required where the building or compartment is provided, with or without an Automatic Fire Sprinkler System. • The Black [HR Panel Product] can be used as an internal lining to ceilings where a Group 3 product is required in a sprinkler protected building. 91 At the end of the certificate appear two boxes, which it is convenient to replicate: Silver / White finish Group Number 1 SMOGRARC 49 m2s-2 x 1000 Black finish Group Number 3 SMOGRARC 278.5 m2s-2 x 1000 92 Although the form of the Ignis Certificates changed over time (the certificates in evidence spanned a three-year period from November 2016 to June 2019), the substance of the representations that they contained remained consistent—in particular, from around 21 November 2018, the Ignis Certificates represented that the HR Panel Product achieved a group 1 rating in silver and white finish and a group 3 rating in black finish. 5.3 Marketing the HR Panel Product 93 Mr Lewinsohn gave evidence that Pirmax marketed the HR Panel Product by issuing "technical datasheets", and disseminating them to distributors, customers and potential customers—either by providing the technical data sheets to those persons by email or making them available for download on the Pirmax website. Pirmax also provided its distributors and direct accounts (those customers to which Pirmax supplied products directly) with the reports described at [67] above. Mr Lewinsohn gave evidence that Ms Menadue "arranged preparation of the technical data sheets and other marketing material for [the HR Panel Product]" based on those reports. 94 Several versions of the technical data sheets were in evidence, most of which were undated but referred to by their respective "version". Early iterations of the data sheets included the following statements about the HR Panel Product: (a) "Fully compliant to the Australian National Construction Code"; (b) "Achieves a Group 1 BCA/NCC fire classification when tested to AS ISO 9705-2003, compliant to the 2016 National Construction Code"; (c) "Applications: Soffit (Carpark Application), Walls External/Internal, Raised Underfloor, Ground Floor Slabs, Ceilings, Roofs, Domestic and Commercial Ducting, External Cladding"; (d) "NCC/BCA Compliant"; (e) "Group Classification AS ISO 9705:2003: Group 1 Lining"; and (f) "Group Classification AS/NZS 3837:1998: Group 1 Lining". 95 A subsequent version of the data sheet, labelled as "v 3.2" (and apparently dated 17 January 2018), included the following representations: (a) "Achieves a Group 1 BCA/NCC fire classification when tested to AS 5637.1 (ISO 9705), compliant to the National Construction Code, NCC/BCA Volume 1: Specification C1.10"; (b) An image stylised as a circular rubber stamp engulfed in flames with the text "AS 5637.1 CLASSIFICATION" around the circumference of the stamp and "GROUP 1" in large text embossed across the centre of the stamp; (c) "Applications: Soffit (Carpark Application), Walls, Raised Underfloor, Ground Floor Slabs, Ceilings, Roofs, Domestic and Commercial Ducting"; (d) "NCC/BCA Compliant"; and (e) "Group classification: AS 5637.1 (ISO 9705) Group 1". 96 A further version of the data sheet (publicly available from at least December 2019) included the following representations: (a) "Achieves a Group 1 BCA/NCC fire classification when tested to AS 5637.1 (ISO 9705), compliant to the National Construction Code, NCC/BCA Volume 1, Specification C1.10 (ceiling/soffit only)"; (b) "Typical applications include: • Soffit (Carpark Applications) • Wall systems • Raised Underfloor • Ground Floor Slabs • Ceiling Systems • Roofs • Domestic and Commercial Ducting"; (c) "NCC/BCA Compliant"; and (d) "**Group Classification AS 5637.1 (ISO 9705) Group 1 [in silver finish] Group 1 [in white finish] Group 3 [in black finish]". 97 The double asterisk that preceded the representation about the HR Panel Product's group classification corresponded with a double asterisk at the bottom of the next (and final) page of that data sheet, which read as follows: **Achieves a group 1 classification in accordance with AS 5637.1:2015 and AS 1530.3 under BCA Clause C1.10 Clause 4 and 7 respectively. The AS ISO 9705-2003 testing included a soffit application only. Black Facing option achieves a group 3 in SOFFIT applications 98 Mr Lewinsohn also gave evidence that, by means of marketing, Pirmax made various statements about the HR Panel Product on its website, including as follows (a) "tested to meet the stringent requirements of the building codes australian and national construction code"; (b) "fire safety certified"; (c) "Pirmax PIR Panels meet the stringent requirements of the Building Codes Australia (BCA) and National Construction Code (NCC)"; (d) "Group 1 ISO 9705-2003 ceiling lining system in accordance with BCA 2016"; and (e) "Has Pirmax been tested for ASISO 9705-2003? – Yes, Pirmax has a Group 1 AS ISO 9705 – 2003 / AS 5637.1:2015, Determination of fire hazard properties. The peak heat release rate determined during the test was 0.831 (MW). The test did not reach flashover and supports a Group 1 rating of the ceiling lining system in accordance with BCA 2016 (Refer to page 8 of Acronem NCC 2016 Fire Hazard Properties Assessment for ceiling only applications report summary)". 5.4 Kingspan's concerns about Pirmax's performance claims 99 As alluded to earlier, Kingspan is a subsidiary of Kingspan Group PLC, a global manufacturer of building products. It has been manufacturing rigid thermoset polyisocyanurate insulation foam for nearly 40 years, and has been selling rigid thermoset insulation in the Australian market since 2009. It manufactures its products at various locations around the world, including at a manufacturing facility in Somerton, in Melbourne's north. 100 In addition to its rigid thermoset polyisocyanurate products, which are produced under the product name "Therma", Kingspan manufactures a rigid thermoset phenolic insulation product range called "Kooltherm", which includes the "Kooltherm K10" product. As already stated, Kingspan and Pirmax compete in the market for the supply of rigid thermoset insulation products—in particular, Kingspan's Kooltherm product range competed directly with the Pirmax HR Panel Product. 101 There was evidence that Kingspan had a practice of testing its competitors' products from time to time. Mr Gibson gave evidence that: Kingspan…carries out product testing to ensure that we are competing on a level playing field. When we see claims made by our competitors that we are dubious about, we will often investigate further… For Kingspan, the process of investigating the performance claims made by a competitor will usually commence with a desk top analysis. This involves Kingspan's technical R&D team obtaining the literature available on the product, including the product data sheets and the relevant product certificates, along with a sample of the relevant product certificates, along with a sample of the relevant product. We review this information and material and if our further investigations do not identify any anomaly or concern in which case we do not further investigate. If we find that there are anomalies or there are performance claims that are beyond what are typical for the product type, we usually write to the company and seek verification. If the manufacturer's response on verification of its claims is not satisfactory to Kingspan's analysis, Kingspan usually proceeds to undertaking testing of the product. This testing may be done internally in the first instance, however, if the results do not verify the product's performance claims, we typically engage a third party to obtain samples and have the product independently tested. 102 Similarly, Mr Anderson gave the following evidence: I also regularly monitor the compliance of competitors' products to check that their compliance claims are accurate. When evaluating a competitor's product, I usually commence by working closely with Ashley Vicente to conduct a technical examination of the product technical data to test against the performance claims made by the manufacturer to the market. If we form the view that those claims are unreasonable or unsupported by technical evidence, then, from time to time, depending on the impact which Kingspan perceives the product is having on Kingspan's business, I may arrange for the product to be tested either by Kingspan internally, by a third party externally, or both. The properties we test for are typically thermal and fire performance, being the two most important properties of rigid thermal insulation being relevant to NCC requirements for energy efficiency and fire safety. 103 Mr Gibson and Mr Anderson each gave evidence that, shortly after Pirmax's entry into the market, they began to suspect that Pirmax was overstating the performance of the HR Panel Product's thermal, dimensional and fire resistance properties. Mr Gibson gave evidence that, although phenolic products (like Kingspan's Kooltherm product range) typically achieve greater fire performance and produce less smoke than polyisocyanurate products, Pirmax had made claims to the effect that the HR Panel Product outperformed the Kooltherm product range and "any other conventional [polyisocyanurate] product manufactured anywhere in the world". Mr Anderson likewise gave evidence that he doubted the HR Panel Product could achieve similar thermal and fire performance to the Kooltherm K10 product "because Pirmax was a relatively new manufacturer…and because K10 was a phenolic insulation that typically achieves a better thermal performance [than] polyisocyanurate". 104 In light of those concerns—and consistently with its approach to testing its competitors' products—Kingspan began investigating the performance claims made by Pirmax in respect of the HR Panel Product. 105 Mr Anderson gave evidence that, in March 2016, he instructed a Kingspan employee, Ms Ashley Vicente, to conduct testing of the HR Panel Product's thermal performance internally at Kingspan using a heat flow meter on-site in Perth. Mr Anderson believed that the results of those tests showed that the HR Panel Product's thermal conductivity rating was higher (meaning its insulation performance was poorer) than what Pirmax had represented in the advertising and technical materials that he had reviewed. 106 Mr Anderson also gave evidence that, from around June 2016, he became aware of the Pirmax Exova Report which, he said, caused him concern, given: (a) the report did not refer to the HR Panel Product, but instead referred to a test specimen identified as "Daltofoam MR 40788" and "Suprasec 5005"; (b) the test report was sponsored by the CSIRO, and not Pirmax; (c) the testing was conducted on 14 April 2016, which was two weeks prior to the commencement of NCC 2016 (which provided for testing in accordance with AS 5637); and (d) the test report was issued on 9 May 2016, after NCC 2016 had come into effect. 107 Mr Anderson stated that he likewise held concerns about the Acronem Report, because it was not issued before 1 May 2016. 108 Mr Anderson gave evidence that, in light of the results of the internal testing that Kingspan had performed, he decided to commission independent testing on the HR Panel Product. Initially, Mr Anderson arranged for Kingspan to engage the AWTA to conduct a series of thermal conductivity tests from mid-2016 through to early-2019. He gave evidence of his belief that the testing performed by AWTA revealed significant material variability in the HR Panel Product's thermal performance. He also arranged for Kingspan to engage the CSIRO to perform thermal conductivity testing on the HR Panel Product. The CSIRO issued a report in respect of that testing on 2 December 2016 (the "CSIRO Report"), which showed that the specimen that it tested achieved a thermal conductivity rating that Mr Anderson considered was significantly in excess of what Pirmax had advertised. 109 Mr Gibson gave evidence that by the end of 2016, and as a result of Kingspan's internal investigations, Kingspan was of the view that: (a) the thermal performance and fire performance claims made by Pirmax in its advertising materials and technical data sheets overstated the performance of the HR Panel Product; and (b) there were anomalies in Pirmax's AS ISO 9705 fire test documentation. 110 In particular, Mr Gibson gave evidence that Kingspan was of the view that Pirmax's claims that the HR Panel Product achieved a group 1 fire rating were false, and that Pirmax was claiming the HR Panel Product had a group 1 fire rating without having conducted the requisite testing in accordance with AS 5637.1. 5.5 Kingspan's counter-marketing efforts 111 By at least early-2017, Kingspan commenced what was described as a "counter-marketing" campaign. It began sharing its concerns about the HR Panel Product with building industry participants. It did so with the aim of discrediting Pirmax's performance claims, while simultaneously putting its own product forward as a more reliable alternative. Mr Gibson gave evidence in cross-examination that counter-marketing was common "in our industry and our business". 112 Initially, those concerns were focused on the HR Panel Product's thermal performance and its dimensional qualities. For example, on 25 January 2017, Mr Andrew Wisbey, who held the role of Kingspan's "State Specification Manager WA", sent an email to certain employees at Multiplex with the subject line "RE: David Jones Mandurah". That email read, in part, as follows (errors original): … Further to my previous email we believe that one of the products proposed for David Jones is PIRMax. PIRMax is an Australian made PIR board which has been on the market for approximately 1 year now. Should there be any failures to the product will PIRMax be in a position to rectify them? For this application the product used will need to achieve a group number showing fit for use as a lining material. This is achieved through the ISO9705 full scale room burn test. Attached are the test results from PIRMax to claim this Group number. Please note that page 4, 6 and 8 of this report the product description is 70mm thick PIR insulation with 0.6 mm thick embossed aluminium foil", however independent testing of the product in the market place is showing that the foil facing used on the product is up to 50% thinner than the product tested. Please see attached AWTA report with foil face thickness showing between .3 and .38 foil being used. The foil thickness is relative to the performance of the product in the event of a fire. We strongly support testing with this .3 or .38 foil would have failed. As we mentioned on the Perth Stadium project Alex, Kingspan is the largest manufacturer of PIR in the world however Phenolic insulation is more fit for purpose due to its increased fire properties and less smoke obscuration. We also hold FM approval which no PIR board obtains. We were not specified in this project but I feel compelled to highlight to you some of the products and testing results in the market today. Without third party certification such as CODEMARK, it is a very complicated process to research all these documents. … 113 On 6 February 2017, and in light of the results expressed in the CSIRO Report, Mr Anderson (on behalf of Kingspan) sent what was described as a "warning letter" to Pirmax, which set out Kingspan's concerns regarding Pirmax's representations about the HR Panel Product's thermal conductivity rating and attached a copy of the CSIRO Report (the "Warning Letter"). That letter also set out Kingspan's concerns about the dimensional properties of the HR Panel Product—specifically that the Pirmax Exova Report referred to the HR Panel Product as having "foil facing that was 0.60 mm thick", whereas Kingspan had obtained a sample of the HR Panel Product for which the foil facing was 0.36 mm thick. That, the Warning Letter read, "suggests that there has been a significant change of specification which could affect the results obtained in the AS ISO 9705 test". 114 By letter dated 14 February 2017, Pirmax's then solicitors, Obst Legal, responded to the Warning Letter. That response, however, was sent to an electronic fax number that was then not in use. Having not received (or been aware of) any response to the Warning Letter, the assumption within Kingspan was that Pirmax had declined to engage with the matters that it set out. 115 In any event, the correspondence from Obst Legal denied Kingspan's allegations about the HR Panel Product's thermal conductivity rating, and disputed that the specimen the subject of the CSIRO Report was in fact the HR Panel Product. The letter did, however, clarify that the dimensional claims with which Kingspan took issue—namely that the Pirmax Exova Report referred to the HR Panel Product as having a foil facing of 0.60 mm thickness—were the result of a typographical error, and that the product to which the Pirmax Exova Report related instead had a foil facing of 0.06 mm. 116 On 9 March 2017, Mr Gibson sent an email to Mr Craig Burr, Kingspan's sales director for Australia and New Zealand, with the subject line "PIRMAX Warning Letter" containing his "suggested wording" for an email to be sent to two builders, ProBuild and Multiplex, regarding the HR Panel Product. That email read, relevantly (errors original): Further to our discussion today see my suggested wording to send to ProBuild and Multiplex below Craig. We take some risk here folks but these guys are clearly attacking our specifications with overstated performance claims. We need to defend a level playing field and hold them accountable to declaring honest performance claims. Customers need to be warned to seek further advice and the community needs to be protected from non-conforming buildings. If they are to fight it then let them bring the fight to us, so long as we play a straight bat we will be within the law. Regards SG Dear xyz, The attached communication between ourselves and the Directors of PIRMAX [i.e. the Warning Letter] is for your information only and has been provided to you on request by you in response to your concerns. To date we have had no response from PIRMAX to the attached warning letter that warns them that on the evidence presented that PIRMAX are supplying non-compliant product. Our technical department has since commissioned further tests on material collected from the field and these additional tests further evidence the position outlined in our warning letter to PIRMAX. Evidence collected by Kingspan over more than six months supports the position that the product's thermal performance is overstated by up to 33% and that the material described in their fire certificates is not consistent with the physical characteristics and dimensions of the material collected from the field. I have also been told that our Technical Team now intends to drawing these facts to the attention of authorities along with a copy of the correspondence attached and a list of projects as evidence of where the product has been misused. My advice to you is to seek further advice and an independent risk assessment of the product you are intending to substitute Kingspan Kooltherm for as it has been specified for a specific reason and it is third party certified as compliant. The cost of using non-conforming products in well documented and generally far out ways the costs of the original installation. Your truly … 117 The next day, Mr Ryan Hitzman, Kingspan's national business development manager, sent an email to a representative from ProBuild with the subject line "Probuild Promenade Apartments – PIRMax Non Conformance and Supply Chain" that adopted, with some variation, the template set out in Mr Gibson's email above. Mr Hitzman's email attached a copy of the Warning Letter and the CSIRO Report. There were other examples in evidence of emails following the same template having been sent to other building industry participants. 118 On 24 March 2017, Mr Anderson lodged on Kingspan's behalf an online complaint with the Australian Competition and Consumer Commission regarding his concerns about the HR Panel Product. The "Description" section of that complaint read as follows (errors original): I am Technical R&D and Accreditations Manager for Kingspan Insulation Pty Ltd in the Asia Pacific region. Kingspan is a global supplier of insulation products with approx 90% of products sold in Australia being Australian manufactured. PIRMAX Pty Ltd manufactures building insulation in Victoria using polyisocyanurate (PIR) foam to produce rigid thermal insulation boards. The material thermal resistance (R-value) of these boards relies on the thermal conductivity of the foam, and having arranged for independent sampling and testing of PIRMAX PIR insulation we have found the R-value to be 25% deficient of the declared R-value on the PIRMAX data sheet for this product. This effectively means that this thermal insulation will actually transmit 33% more heat than what is promoted, meaning buildings will lose or gain significantly more heat than what they have been designed for. We have also found that the fire testing report is not representative of the PIRMAX product being currently sold as the foil facer used in the test is considerably thicker than the facer used in practice. The foil facer is declared as 0.6mm thick in the test report, while independent testing by AWTA reports foil thickness of 0.36mm on product sold in practice. This could make to make a significant difference to the fire test results. These issues were reported to PIRMAX on 4 Feb but no response has been received to date. The reports mentioned above are all available on request. 119 In early-April 2017, Pirmax, apparently aware that Kingspan had begun to share its concerns about the HR Panel Product with others, caused the following message to be published on its website: Urgent Notice to our valued current and future customers It has come to our attention that a competitor has been issuing misleading information and falsified test reports to unsuspecting clients in an attempt to discredit our product. The test facilities from whom these test results are alleged to have been sourced have been notified of this fraudulent activity. We produce a product that is designed to safeguard you and your family, and we take our testing and compliance very seriously, so in the interest of being transparent we have chosen simply to ensure that we have any required test and compliance documentation available to our valued customers upon request. Remember: If you feel that you may already be in possession of questionable documentation purporting to be that of our product or simply wish to request information for your building requirements, please contact us and we will happily make arrangements to discuss them and to issue validated and genuine documentation to you. … To clarify some specifications that were directly challenged; • What is the K value of Pirmax Pir? – Pirmax has a K value of K 0.020. Tested to AS/NZS 4859.1 for the Thermal Insulation of Buildings… • Has Pirmax been tested for ASISO 9705-2003? – Yes, Pirmax has a Group 1. AS ISO 9705 – 2003 / AS 5637.1:2015, Determination of fire hazard properties. The peak heat release rate determined during the test was 0.831 (MW). The test did not reach flashover and supports Group 1 rating of the ceiling lining system. • What is the thickness of the foil? – Our foil is .06mm as stated on our EXOVA/Acronem AS ISO 9705 test results. 120 On 11 April 2017, Mr Gibson sent an email to four Kingspan employees, including Mr Anderson and Mr Burr, with the subject line "RE: New PIRMAX Website Notice". That email read as follows: We have the go ahead to start a legal process against these guys now. We need to be 100% sure of our facts though. I also need a list of projects where Kingspan was specified and PIRmax was supplied. In addition we need to prove that PIRmax provided information to the contractor that was false and was relied upon by the contractor (this is essential). Keith and Karim can you please put together a brief similar to the one we did for Choice Solutions. This will be sent to our solicitors but we may also consider using it in the field. Keith I think that they are still relying on their original samples by the way. We play fair on this but hard gents so make sure we do our homework and we are 100% on the facts. Craig also please make sure our sales teams are not over reaching in the field either as we don't want to be pursued ourselves in respect to misuse of market power or misleading information. Regards Scott Gibson 121 At around that time, Pirmax lodged a complaint with the Victorian Small Business Commission regarding Kingspan's conduct. That complaint was the subject of a mediation session. Although some form of agreement was apparently contemplated, the dispute ultimately did not resolve. 122 Mr Gibson gave evidence that he instructed Mr Anderson to review one of the Ignis Certificates upon which Pirmax relied to support its claims about the HR Panel Product. Mr Gibson gave evidence that Mr Anderson "raised with me a number of concerns regarding the quality and legitimacy of the information contained in the 2017 Ignis Certificate". On 13 September 2017, Mr Anderson wrote a letter to Mr Hughes-Brown setting out those concerns. That letter read, in part, as follows: Further to our discussion last week I wish to formally advise you of the deficiencies we see in respect to the Evaluation Report 4212 I01R01 [i.e. one of the Ignis Certificates] provided by Ignis Solutions to PIRmax Pty Ltd relevant to their PIRmax range of Polyisocyanurate insulation panel. Our complaint is not with Ignis Solutions per se but with the information relied upon in your report as follows and highlighted in the marked up version attached: … b) Exova Warringtonfire report No. 42119200.1 (AS ISO 9705) i. This report does not identify PIRMAX Insulation Panel as the tested specimen. It does describe the lining material tested as PIR insulation produced from Daltofoam MR 40788 and Suprasec 5005 and that it was autohesively bonded to a 0.06mm embossed aluminium foil in a continuously foaming process by PlRmax Pty Ltd. This does not identify the tested sample as PIRMAX Insulation Panel, and the Daltofoam reference numbers are different to the number reported in Report No. 315800-00.1, therefore they cannot be considered to be the same product. ii While the test date for this test is reported as 14th April 2016, the test report was not issued until 9th May 2016. This is after the 1st May 2016 when NCC 2016 became effective, and this version of the NCC calls up AS 5637 which in turn calls up the AS ISO 9705 test method, but also requires explicitly that the test must be conducted with the test material installed in both the ceiling and walls of the test room in order to determine the Group Number. While the reference to AS 5637 in NCC 2016 states that "Test reports indicating the group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019", PIRMAX Insulation Panel has not been verified as Group 1 by this test method under prior versions of the NCC. … We believe that the details above are significant in their relevance to the expert opinion provided by Ignis Solutions and that a number of the certificates are irrelevant or unreliable. The onus is rightfully on the manufacturer to inform the consultants they engage if and when they make material changes to their products, or any other detail, that could affect the validity of assessments and evaluations used to promote their products, and we understand and accept that this may not have occurred with you. While it is up to you ultimately to decide your own course of action in this case, we feel we should inform you that it is Kingspan's intention to draw attention to the anomalies above if questioned in cases where the PIRmax Insulation Panel is being proposed to substitute our own Kooltherm products in projects and we believe that as the PIRMAX product being supplied to market was not the product assessed by Ignis that your Expert Opinion should be withdrawn on the basis that the items we have highlighted are found to be now invalid. We understand you to be a well credentialed and respected expert in this field so please don't see this as an attack on your credibility we are simply drawing your attention to facts that otherwise may affect your expert opinion. 123 The next day, 14 September 2017, Mr Hughes-Brown responded to Mr Anderson's letter by email in the following terms: Hi Keith Thank you for your email and associated letter. The matter of accurate information and consistency in product details is of utmost importance to myself and Ignis Solutions. We have attempted contact with PIRMAX and will continue to follow through with an investigation on the points you have raised. Thank you for bringing this to our attention. Regards … 124 It was around that time that the focus of the counter-marketing communications emanating from Kingspan shifted from the HR Panel Product's thermal conductivity rating and other physical properties (which are not in issue in this proceeding), to Pirmax's claims that the HR Panel Product achieved group 1 classification. 5.6 Kingspan's misleading or deceptive conduct allegation 125 On 12 October 2018, Kingspan's solicitors, Herbert Smith Freehills, wrote to Pirmax setting out the concerns that Kingspan then held. That letter, which is extensive, traversed in detail each of the reports and certificates relied upon by Pirmax, and explained the reasons why Kingspan believed that Pirmax's reliance was misplaced, and why it considered that Pirmax's conduct was misleading or deceptive. It read, relevantly: We are instructed by our client that: (a) Pirmax Pty Ltd (Pirmax) produces a range of PIR MAX Insulation Panels (Products) which it supplies to the Australian building industry; (b) Pirmax distributes to the market various advertising and promotional material in relation to the Products (Advertising Material); and (c) the Advertising Material references incorrect test results and specifications and overstates the performance of the Products. For the reasons explained in further detail below, by this conduct, Pirmax has and continues to engage in conduct that is and was misleading and deceptive in breach of the Australian Consumer Law (ACL). … Pirmax has [distributed] and continues to distribute to the market Advertising Material in relation to the Products via the websites accessible at https://www.pirmax.com.au/ (Pirmax Website) and http://reflexinsulation.com.au/ (Reflex Website). In particular: (a) various technical data brochures are accessible via the Reflex Website which contain product specifications and installation instructions (Technical Data Sheets); and (b) a range of reports are accessible via the 'Compliance' page of the Pirmax Website which are described as "Safety, Certification and Test Reports" (Test Reports). … In the Pirmax website, Reflect Website and Technical Data Sheets, Pirmax makes the following statements about the Products: (a) the Products fully comply with the National Construction Code (NCC) and Building Code of Australia (BCA); (b) the Products have a thermal conductivity (K-value) of 0.020; (c) the Products have 'Group 1 NCC/BCA Fire Classification according to AS/NZ 3837:1998' and 'Group 1' fire classification in accordance with AS ISO 9705 – 2003 / AS 5637.1:2015; and (d) the Products are constantly checked in accordance with ASTM C518, before, during and after the manufacturing process. (Pirmax Statements) Pirmax relies on a number of Test Reports in support of the Pirmax Statements, however, for the reasons explained in section 4 below, the Pirmax Statements go beyond the conclusions reached in the Test Reports and are therefore baseless, false and misleading. (references omitted) 126 Specifically, as to the Ignis Report and the Acronem Report, the letter stated: 4.2 Ignis Product evaluation … On page 8 of the [Ignis Report], Section 3 states: The installation of the PIRMAX insulation within the ISO 9705 test was as a soffit only and not on both the ceiling and wall as required by ISO 9705. Compliance with ISO 9705 is required to demonstrate compliance with AS5637:2015. The tests and reports contained within and relied on by the [Ignis Report] were not conducted with the Products installed in the ceiling and wall, as required in accordance with AS 5637:2015. Accordingly, the [Ignis report] cannot be used by Pirmax to support compliance claims with AS 5637:2015 and NCC 2016… 4.3 Acronem Report Pirmax relies upon [the Acronem Report] in support of the statements that the Products satisfy the requirements for Group 1 Fire Certification. The conclusions reached in the Acronem Report are: (a) expressly limited to the PIRMAX PIR Insulation Panel Foil Faced (Daltofoam MR 40788 and Suprasec 5005); and (b) unacceptable under NCC 2016 as those conclusions are based on the AS ISO 9705 report No. 42119200.1 dated 9th May 2016, which: (1) postdates the date the NCC 2016 was enacted; and (2) as discussed above, involved the material being tested in the ceiling of the test room only. Accordingly, the Acronem Report cannot be used by Pirmax to support its compliance claims in respect of any of the Product Variations, Product Thicknesses, Product Applications or Product Alternative Facers. 127 The letter concluded: 6 Pirmax has and continues to engage in misleading and deceptive conduct For the reasons explained…above, the Test Reports relied upon by Pirmax in support of the Pirmax Statements do not demonstrate or substantiate that each Product variation is compliant or that those Product Variations have been tested to demonstrate compliance as represented by Pirmax. … Kingspan previously sent Pirmax a 'non-compliance' letter on 6 February 2017 [i.e. the Warning Letter] which set out some of Kingspan's concerns regarding the statements Pirmax was making in relation to the Products. As you are aware, Kingpsan requested Pirmax to produce test reports which backed up Pirmax's compliance claims, however, to date, no such test reports have been produced. Instead, Pirmax continues to make the Pirmax Statements to the market on the basis of the conclusions reached in the Test Reports, which, as explained above, do not support the sweeping claims made by Pirmax in relation to the Products. For reasons unknown to Kingspan, Pirmax has elected not to conduct the appropriate testing for the Product Variations, Product Thicknesses, Product Applications and Product Alternative Facers. In all circumstances, Pirmax has [engaged] and continues to engage in misleading and deceptive conduct by claiming: (a) the Products fully comply with the NCC and BCA; (b) the Products have a thermal conductivity (K-value) of 0.020; (c) the Products have 'Group 1 NCC/BCA Fire Classification according to AS/NZ 3837:1998' and 'Group 1' fire classification in accordance with AS ISO 9705 – 2003 / AS 5637.1:2015; and (d) the Products are constantly checked in accordance with ASTM C518, before, during and after the manufacturing process. 7 Next steps As explained above, by distributing the Advertising Material to the market which references incorrect test results and specifications and overstates the performance of the Products, Pirmax has [engaged] and continues to engage in misleading and deceptive conduct. Further, by overstating the performance of the Products, Pirmax is not only misleading the market and thereby gaining an unfair competitive advantage, Pirmax is also potentially causing and/or contributing to the construction of dangerous and non-compliant buildings. Accordingly, Kingspan demands that Pirmax…undertake to Kingspan by no later than 5:00pm on Friday, 26 October 2018 that Pirmax will: (a) remove the false Technical Data Sheets and Group 1 Classification fire tests and representations from the Pirmax Website and any other content, information, materials or documents which contain the current incorrect specifications for each Product Variation; (b) until further testing is conducted in accordance with (c) below: (1) withdraw compliance claims for each Product Variation; and (2) issue a statement to the market, distributors of Pirmax Products and existing customers requiring them to cease publishing the Advertising Materials informing them that you are undertaking further testing in accordance with (c) below; (c) in respect of each Product Variation: (1) conduct testing in accordance with the relevant standards; (2) restate the thermal performance R-Values; (3) publish the updated test results on the Pirmax Website; and (4) prepare updated technical data reports, product brochures and installation manuals containing the updated test results. As explained previously, should Pirmax refuse and/or fail to give this undertaking to Kingspan within the prescribed time, Kingspan will take further action against Pirmax without further notice. … 128 By letter dated 20 November 2018, Pirmax's then solicitors, Collins & Stephens, provided a brief response to the letter of 12 October 2018. It read, in part: We note from the 12 October Letter that the substance of the allegations made by Kingspan are… that "Pirmax had and continues to engage in misleading and deceptive conduct". We are instructed, for the avoidance of any doubt, that:- i. these allegations are expressly and strenuously denied in every respect by Pirmax; and ii. any 'further action' as foreshadowed in 7 of the October Letter) will be vigorously defended by Pirmax. 5.7 Kingspan testing alerts 129 For completeness, there were various "testing alerts" in evidence, which were stylised marketing documents developed by Kingspan aimed at discrediting Pirmax and the HR Panel Product. Ultimately, nothing turns on the specific representations contained in the testing alerts. Nonetheless, they form part of the course of conduct in which Kingspan engaged, which Pirmax urges the court to take into account for the purpose of determining whether representations made subsequently were relevantly misleading or deceptive. 130 One of the testing alerts contained the heading "Are you really getting the product that was tested?". Its purpose, clearly enough, was to raise questions about whether the product that was the subject of the Pirmax Exova Report was the same as the HR Panel Product being supplied to the market. It contained the following summary of the "Product Tested: PIRMax HR Panel": The test reports they are using to claim a Group 1 classification under AS ISO 9705 and AS/NZS 3837 are actually different product names and neither are named PIRMax HR Panel. One is called "Daltofoam MR40788 in combination with Suprasec 5005" and the other is called "Daltofoam MR 42201". 131 Another testing alert had the heading "Are you really getting the product you've been sold?" Its focus was on variations in the density of samples of the HR Panel Product. It read, relevantly: Five density measures were taken from PIRMax products sourced from July 2016 to July 2017. None of them matched the density used for the ISO 9705 test (40 kg/m3). The samples varied with 37.6 kg/m3 being the lowest and 60.5 kg/m3 being the highest, representing a variance of -6% to +51% from the density tested to ISO 9705. Such a wide variance in product density can be an indication of poor quality control in the manufacturing process. Product density can affect both thermal performance and fire performance. Poor quality control and wide variations such as this call into question the credibility of both thermal and fire test reports purporting to support the compliance and performance claims of a product as one cannot be certain that the manufacturing composition of the product which was tested matches the specifications of the product being supplied to the market. 132 There was in evidence a series of internal emails between Kingspan staff regarding the creation and development of the testing alerts, as well as evidence of those testing alerts in what appeared to be their final form. There was also some, albeit limited, evidence of those testing alerts being distributed to building industry participants. To take one example, on 10 May 2018, Mr Damian Squire, Kingspan's area sales manager for South Australia and the Northern Territory, sent an email to Mr Kendall Aplin of Aplin Cook Gardner, an architectural firm, with the subject line "PIRMax Insulation – Park Central" attaching one of the testing alerts. That email read, relevantly (errors original): … Please find attached some information currently available on PIRMax PIR panels. You will notice that PIRMAX are not the sponsor of either of these tests and that two separate Daltofoam chemical compositions are referenced on the test reports. PIRMax Pty Ltd registered as a business on the 3rd March, 2015 according to a public search of the ASIC database. The date quoted on the one of the attached test reports predates the official establishment of the PIRMax business by some 19 months. Furthermore, Please see some information below on the different chemical make up between the Kooltherm closed cell Phenolic Resin and PIR. Also see attached documentation demonstrating compliance to the NCC for the Kingspan K10 insulation board. As discussed we manufacture our Kooltherm insulation from a chemical called closed cell phenolic resin, Kingspan choice to manufacture using phenolic resin as it provides superior thermal values and most importantly fire performance. In the event of a fire Kooltherm will release two and a half times less smoke than a PIR manufactured boards. Kingspan is one of the word largest manufacturers of PIR Globally. Our Technical Department have had some experience with Pirmax and when looking into their thermal values there are some concerns with the accuracy of them. As a manufacture[r] of PIR we know that PIR cannot perform to the same thermal values of closed cell phenolic resin so on three separate occasion[s] we have tested the Pirmax boards and found that their thermal values are over stated by 12 – 15 percent. This PIRmax product was installed as a substitute to Kingspan K10 Soffit Board on the Park Central project. I hope you find this information useful. … 133 There were other similar emails in evidence by which Kingspan employees disseminated these testing alerts. Ultimately, as already stated, nothing turns on the specific representations contained in the testing alerts or the extent of their dissemination. Nonetheless, they were another plank in Kingspan's counter-marketing activities. 5.8 Kingspan's testing of the HR Panel Product 134 In late 2018—having been engaged in a dispute with Pirmax over a lengthy period, and having failed to bring about the outcome that it desired—Kingspan commissioned Exova to conduct testing of the HR Panel Product. Mr Gibson gave evidence that Kingspan arranged for the delivery of three packs of the HR Panel Product in a white finish and in 60 mm thickness from one of Pirmax's distributors, 4 Corners Insulation, to Kingspan's premises at Somerton. Those products were then couriered to Exova's test site in Dandenong South. An affidavit made by Mr Gibson annexed, relevantly, photographs of the product to be tested, which he stated were taken at 4 Corners Insulation on 30 November 2018, and an invoice from 4 Corners Insulation dated 11 December 2018 for "3 x Packs of Pirmax 60mm 2.4m x 1.2m WHITE (5 sheets per pack)". Kingspan also engaged Dr Barnett to attend the installation and testing of the HR Panel Product by Exova and to prepare a report of his observations. On 12 December 2018, Exova conducted a test of that product, which it video-recorded. A copy of that recording was later provided to Kingspan. 135 Exova produced a report dated 22 January 2019 based on the results of that testing (hereafter, the "Kingspan Exova Report"). Dr Barnett also produced a report (hereafter, the "Barnett Report"), which was initially issued on 22 January 2019 and revised three times, with the latest version issued on 25 February 2019. 5.8.1 The Kingspan Exova Report 136 The Kingspan Exova Report was entitled "Ceiling and wall lining tested in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015". The objective of the Kingspan Exova Report was recorded as being "[t]o determine the fire hazard properties of a ceiling and three walls lined with panels of Product X subjected to a test in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015", and the test specimen was described as follows: The test specimen comprise of a wall lining of double foiled faced 60 mm thick PIR panels of Product X. The lining material was fixed to three walls and the ceiling using 14 g x 125 mm screws with Ø37 mm x 1.5 mm thick washers…The panels were PIR laminated with aluminium foil on both sides, with a white foil facing the internal of the room and a reflective foil facing the external side of the room. 137 Under the heading "Statement of compliance", the report read: The test was performed in accordance with the requirements of AS ISO 9705:2003 (R2016) and AS 5637.1:2015 for the purpose of determining the group number that may be assigned to the material using the classification schemes given in AS 5637.1:2015 and "C/VM2 – Verification Method: Framework for Fire Safety Design". 138 In the section entitled "Performance criteria and test results", the Kingspan Exova Report recorded: The National Construction Code of Australia (NCC) and AS 56371:2015 allow the classification of materials by Group Number, which indicates the amount of time taken for the material being tested to reach flashover under AS ISO 9705:2003 R2016 test conditions. The NCC and AS 5637,1:2015 define flashover to be heat release rate of 1 MW, so materials are classified, in accordance with NCC 2016 Spec C1.10 and AS 5637,1:2015, by the time taken for the heat release rate, as measured during the AS ISO 9705:2003 R2016, to reach 1 MW as per the scheme below; • Group 1 – Materials classified as Group 1 do not reach flashover after ten minutes exposure to a heat source delivering 100 kW immediately followed by a further ten minutes exposure to 300 kW. • Group 2 – Materials classified as Group 2 reach flashover after ten minutes of exposure to a 100 kW heat source. • Group 3 – Material classified as Group 3 reach flashover after two minutes, but before ten minutes of exposure to 100 kW heat source. • Group 4 – Materials classified as group 4 reach flashover before two minutes of exposure to a 100 kW heat source. The material subjected to this AS ISO 9705:2003 82016 test achieved a heat release rate of 1 MW after 39 seconds exposure to a 100kW heat source. Therefore, the system has achieved a classification of Group 4. The NCC and AS 5637.1:2015 also define the smoke growth rate index, or SMOGRARC, as a quantity which may be obtained from the smoke obscuration measurements obtained in the AS ISO 9705:2006 R2016 test. The SMOGRARC for a material is obtained by finding the maximum value of the average rate of smoke growth, where the averages are found from the total smoke obscuration determined over intervals of one minute, then dividing that value by the time that maximum occurred and multiplying the result by 1000. The maximum average rate of smoke growth far this material occurred at 39 seconds into the test and was found to be 103.6 m2s-1. Therefore, the SMOGRARC value for the material is 2657 m2s-2 x 1000. 139 The Kingspan Exova Report concluded: The Product X Board wall and ceiling lining has been subjected to a reaction to fire test in accordance with AS ISO 9705:2003 R2016 and AS 5637.1:2015. The specimen achieved the following performance requirements as defined in AS ISO 9705:2003 R2016, AS 5637.1:2015 and the National Construction Code of Australia (NCC): • Group number : 4 • SMOGRARC (in m2s-2 x 1000) : 2657 The specimen achieved the following performance requirements as defined in the C/VM2 – Verification Method: Framework for Fire Safety Design: • Group number : 4 • Average smoke production rate : 30.2 m2s-1 140 The Kingspan Exova Report did not describe the product as the HR Panel Product, instead referring to it as "Product X". Mr Gibson gave evidence that that was because "Exova Warringtonfire ha[d] an official policy not to identify tested products in test reports when the testing is commissioned by third parties…without the consent of the manufacturer". Indeed, in an email to Mr Anderson sent on 30 November 2018 with the subject line "RE: Boards for AS ISO 9705 Testing for delivery", Mr Anthony Rosamilia of Exova explained as follows (errors original): Hi Keith I am writing in regard our phone call and request to test PIRmax's (another company's) panels in order to obtain a group number in accordance to AS5637.1. Our position on testing a company's product for another company is as follows: We either test and report the product without the specifics of the product being mentioned, namely the Product and Company; or we can provide a report with a full description of the product when we have obtained the company's (who's product is being tested) written permission that we can test their product on your behalf. Please let me know how you want to proceed. Kind Regards, Anthony 141 For its part, Pirmax did not accept that the product tested was in fact the HR Panel Product. It also disputes that the test performed by Exova and, consequently the Kingspan Exova Report, accorded with AS ISO 9705. 5.8.2 The Barnett Report 142 The Barnett Report was published by Basic Expert Pty Ltd, a company of which Dr Barnett is the managing director. 143 The Barnett Report describes the background and scope of the report, the various documents Dr Barnett reviewed for the purpose of preparing the report, and the test itself. Under the heading "Conclusion", it stated, relevantly, as follows: 3.1 Anticipated Group number ratings 3.1.1 I reviewed the material in four websites, one for Pirmax panels and three for Reflex Insulation [one of Pirmax's distributors] as well as the Pirmax HR-Panel Technical Data Sheet V.0 which was provided to me… They refer to the White Pirmax panel that was tested, and both indicate a Group number of 1 for the product. These documents (including the Reflex Technical Data website) imply that the Group number was determined in accordance with AS 5637.1 and testing to AS ISO 9705. 3.1.2 I reviewed the IGNIS Certificate dated 21 January 2019. The Certificate references an IGNIS compliance report IGNS-6408 I02R00 dated 08.01.19 which is not available on the website. 3.1.3 The test referred to in the IGNIS Certificate 6408-03 I02R01 of the White Pirmax panel, is where the Pirmax panel lined only the ceiling of the test room. 3.1.4 The National Construction Code references AS 5637.1 which then specifies the use of ISO AS 9705 to determine Group numbers. AS 5637.1 section 5.2.1 states "Tests of walls or ceilings alone shall not be used for determining group number or SMOGRARC". 3.1.5 Therefore, the test of the ceiling (soffit) referred to in the IGNIS Certificate 6408-03 I02R01 did not conform to the National Construction Code's requirement for the use of AS 5637.1 to determine a Group number. 3.2 Test results 3.2.1 As tested in accordance with the National Construction Code's requirement to use AS 5637.1 the tested White Pirmax panel • failed to achieve the criteria for a Group number of 1 • achieved a Group number of 4 … 3.3 Misleading information 3.3.1 In light of my findings in 3.2.1 and Warringtonfire's findings in 3.2.2, the information referred to in 3.1.1 is false and misleading, i.e. the product has a Group number of 4 NOT a Group number of 1. 3.3.2 The IGNIS engineering evaluation is wrong as the Pirmax HR Panel (white) has a Group number of 4 when tested and not 1 as Hughes-Brown reports. The tested Group number is the relevant one, not one based on an Engineering Evaluation Certificate. 3.3.3 The use of a product with a Group number of 4 in locations within a building where a Group number of 1 is required by the Deemed-to-Satisfy provisions of the National Construction Code is not only contrary to the appropriate provisions of the building code but may result in not achieving the performance requirements of the NCC and may result in an unsafe situation. … 4.2 Pirmax Group Number claim 4.2.1 As stated in 3.3.1 the Pirmax Foil-Faced Panel (white) does not have a Group number of 1 when tested to AS5637.1 (ISO9705). 4.2.2 As stated in 3.1.4 the test may not be used for a soffit application only to determine the Group number or the SMOGRARC. 4.3 Testing of wall and ceiling wall systems 4.3.1 The NCC is clear that products tested to AS5637.1 (ISO9705) must include a complete system and the test results may not be used to evaluate a wall system or a ceiling system if the complete system (wall and ceiling configuration) isn't tested. 4.4 Information within the Pirmax Technical Data Sheets and test reports via the website 4.4.1 As stated in 3.3.1 the information within the Pirmax Technical Data Sheets and test reports regarding the group number is misleading. The product has a Group number of 4, not 1. 144 On 11 February 2019, Kingspan's solicitors, Herbert Smith Freehills, wrote to Pirmax's then solicitors, Collins & Stephens, outlining Kingspan's concerns that Pirmax continued to make misleading or deceptive representations about the HR Panel Product. By that correspondence, Kingspan's solicitors provided copies of the Kingspan Exova Report and the Barnett Report, and proposed that the parties and their legal representatives meet on a without prejudice basis to discuss those reports and Kingspan's concerns about the HR Panel Product more generally. Pirmax, by letter from Collins & Stephens, declined that proposal, denied any allegation of misleading or deceptive conduct, and invited Kingspan to raise its concerns about the HR Panel Product with the relevant authorities. 145 The next day, on 12 February 2019, Mr Burr sent an email with the subject line "PIRmax 5637" to several Kingspan employees, which read as follows (errors original): Hi team Update from my side, I had confirmation from a NSW customer today that PIRmax doesn't have a 5637 test as of today but have assured the client that they will have their ducks lined by 1 May Huge opportunity over the next week to drive as many people to ask the question of these guys as possible (whisper was they got Gp3 and will be retesting looking for a Gp2) Make sure there is doubt over what product is out there what Gp No it will claim moving forward . Use the CSR info to refer how difficult it is to get a Gp 2 and note that they have a Gp 1 for Ceiling only and a Gp 3 Wall & Ceiling with metal angles this is a massive change in claimed performance of the same product Create a storm while the window is open it will take weeks for them to unravel and go back to the market with a result after May 1 Target your highest compliant customers and the influencers in the market. Good luck out there team and enjoy ! 146 It was around that time that Kingspan's efforts appeared to hone in on Pirmax's claim that the HR Panel Product was compliant with AS 5637.1. In response to Mr Burr's email mentioned in the previous paragraph, Mr Anderson sent the following email (to Mr Burr only): I suggest that we make an issue of the fact that they claim compliance with 5637, and have been for some time so it shouldn't be difficult for them to present a 5637 complaint Group 1 report. Regards, Keith 147 The next day, 13 February 2019, Mr Burr sent a further email to a similar group of recipients as the email sent on 12 February 2019. That email read, in part, as follows (errors original): Hi all after a discussion with Keith he drew my attention to the fact that PIRmax have been claiming a Group 1 in accordance with 5637 for some time, I thought that they had removed these claims from their website but on investigation they still have the attached on line so…. So from that I have downloaded the brochures as on today they have on the web claiming either compliance to 5637 or NCC 2016 amendment 1 (same) … As per prior email discussion they have responded in the market when questions with "we will be compliant by 1 May" But armed with the attached I will be asking then to go back and question "what do you mean you will be compliant by 1st May your literature states that you have Group 1 in accordance with 5637 so please send me that test result" And I will obviously arm them with the copies of ours as to what they need to get We know that they won't be able to produce a 9705 test in accordance with 5637 ! let alone a report stating a Group 1 Thus going against their documents and published claims. Please use this when you can, always be factual and refer to their own website for claims using our test as a reference what to ask for. Any questions please refer to your manager for clarity Good luck and have fun 148 Meanwhile, Kingspan continued its counter-marketing activities. It is unnecessary to describe those activities in further detail. It suffices to record that Kingspan, through its employees (and with the imprimatur of Kingspan's management), sent emails to various building industry participants—including builders, contractors, insurers, and superintendents—highlighting what Kingspan considered to be the deficiencies in the HR Panel Product and the materials used to market it. 5.9 Project Shield and Sword 149 Mr Gibson gave evidence that, in mid-February 2019, he prepared what he described as a "strategic document", which he entitled "Project Shield and Sword" (the "Project Shield and Sword Document"). The purpose of the Project Shield and Sword Document, Mr Gibson said, was to instruct Kingspan's senior management and sales team as to the manner in which they were to convey the results of the Kingspan Exova Report and the Barnett Report to market participants. Mr Gibson's document became the genesis of a marketing push from Kingspan known as "Project Shield and Sword". 150 On 18 February 2019, Mr Gibson sent an email with the subject line "Project Shield and Sword" to Kingspan's Australian senior management team attaching a copy of the Project Shield and Sword Document. That email read as follows: Hi Gentlemen, It is now time for us to defend ourselves and regain some lost ground against PIRMax. The attached brief outlines what our strategic approach is to the market and the manner in which we must communicate. The attached documents are Controlled Documents and not for broad circulation and note that the brief itself is strictly confidential and for internal circulation within your teams only. The objective is to firstly protect our specifications from attack from PIRmax and their claims of Group 1 compliance under AS5637.1 (ISO 9705) and secondly hold them accountable for their claims and draw attention to the findings of the independent investigative report by Dr Jonathon Barnett who bring[s] into question the validity of their fire compliance statements. The brief outlines the professional and ethical manner in which we must execute the strategy ever mindful that this may go to court so every communication we make to the market may be scrutinised. The email template includes the test report and covering email must send with them as signed off by our solicitors. Craig will also follow up with additional tactical coaching in terms of field work. Good luck gentlemen, let's get out there and keep the bastards honest. Regards Scott Gibson 151 The Project Shield and Sword Document included the following statements: Objective: • Shield: To protect our specifications from attack from PIRmax and their claims of Group 1 compliance under AS5637.1 (ISO 9705). • Sword: Draw the attention of the Authorities and Building Professionals to the findings of the independent investigative report by Dr Jonathon Barnett. Wrong foot our competitors on AS5637 compliance ahead of the 1st of May deadline by promoting our own ISO 9705 documentation as evidence of what they should be asking for. Remember our TPA Training • W[e] never discuss pricing in any way shape or form with a competitor. • We never threaten a supplier with supply termination if they carry a competing product. • We never force suppliers to sell at a particular price. • We never make False & Misleading statements • We never supply product that is not fit for purpose. • We never make misleading statements to a customer or consultant. • We never rubbish a competitor product. • Bottom Line – We Never Lie… Note: There is a saying that says you shouldn't do something you could not tell your mother…the legal equivalent is that you should not put in email something you wouldn't be prepared to see in court… … Controlled Document Protocol • Both the Basic report by Dr Barnett and the Warrington Fire Test report on PIRmax are to be treated as controlled documents. • As a controlled document, they are to only be distributed to approved recipients and they must be sent with the scripted covering email template provided (not to be amended) in this guide. • Craig Burr is the person designated with the authority to approve a recipient. • Once approved please BCC all email correspondence to Neil Cox & Craig Burr so the communication is registered. 152 The Project Shield and Sword Document then set out the scripted email template, to which I shall refer as the "First Scripted Email". That template read as follows (errors original): Subject: PIRmax 60mm HR-Panel – AS/ISO 9705 test results Dear [insert] From time to time, Kingspan conducts tests on its competitors insulation products to check whether they perform as advertised to the market. In December 2018, Kingspan engaged Warringtonfire (an independent NATA accredited test laboratory) to conduct an AS/ISO 9705 test, in accordance with AS 5637, on a white Pirmax 60mm HR-Panel. This panel has been advertised for some time as a Group 1 product when tested in accordance with AS 5637. The test was held on 12 December 2018 and was witnessed by Dr Jonathan Barnett who is a leading fire safety engineering expert and Chair of Engineers Australia's Society of Fire Safety. Attached for your urgent review are copies of the: (i) Warringtonfire Test Report dated 22 January 2019 (Warringtonfire Report); and (ii) Expert report of Dr Jonathan Barnett dated 11 February 2019 (Barnett Report). Both the Warringtonfire Report and Barnett Report concluded that Pirmax's white 60 mm HR-Panel product failed to achieve the criteria for a Group 1 fire classification and instead, rather disturbingly, only achieved Group 4 classification. Dr Barnett observed that "The failure criteria of flashover (as determined by a maximum heat release rate of 1 MW), was reached in about 40 seconds." I also note Dr Barnett's comment that "The use of a product with a Group number of 4 in locations within a building where a Group number of 1 is required by the Deemed-to-Satisfy provisions of the National Construction Code is not only contrary to the appropriate provisions of the building code but may result in not achieving the performance requirements of the NCC and may result in an unsafe situation." I reiterate that this is the independent view of the Chair of Engineers Australia's Society of Fire Safety. Yours truly 153 The Project Shield and Sword Document concluded with the following two slides: Verbally Quotable Points • Kingspan Insulation is part of Kingspan Group Limited, a publicly traded company with an annual turnover of $4.4 billion Euro. "We don't play games when it comes to compliance and fair trading law, we cant." • The PIRmax website and brochures clearly make the claim that they are Group 1 compliant under AS5637.1. [I]n fact they reference this 3 times on their HR Panel Data Sheet. The independent report I have sent you clearly concludes something very different. • Kingspan's Kooltherm K10G2 product is tested in accordance with AS5637.1, it has a confirmed Group 2 rating and is fit for the purpose it has been specified in. In support of this we have the relevant ISO 9705 fire certificate and a third party CodeMark Certificate downloadable from our website. • If this manufacturer is making a fire compliance claim to AS5637.1 then insist you have a copy of the actual ISO 9705 fire certificate which will confirm its group number. They will either have it or they wont as it is a very transparent document and should be available on request as ours is on our website. Preparation • Know the relevant Code • Review the test material in detail so you know it back the front. • Practice your scripted information so you are comfortable with it. • Know their documents and their website intimately so you can guide people through it. • The other side are in denial so expect a rebuttal. • Play the ball not the man. 154 On the same day, 18 February 209, Dr Barnett sent an email with the subject line "ISO9705 test" to Mr Hughes-Brown regarding his assessment of the HR Panel Product. That email read as follows: Hi Ben I witnessed the test in the attached lab report (the material was the PIRMAX HR white). I'm very concerned as I believe you wrote an assessment saying that this product has a group 1 rating. As you'll see it failed in roughly 40 seconds, which gives it a group 4 rating. I think we need to chat. Kind regards Jonathan 155 Mr Hughes-Brown responded to Dr Barnett's email shortly thereafter. His response read as follows (errors original): Hi Jonathan Thank you for your email. I do find it disappointing that competitors of products do these things. I understand the CSIRO has stopped conducting such tests as it causes such problems. Nonetheless here we are. I have not reviewed or endorsed the installation in the configuration detailed within the test report as achieving a Group 1. I understand that a number of these tests have occurred in late December but we are only seeing the results and reports now. This certainly changes the approach needed for the safe use of PIR or PUR or Phenolic. Clearly all rigid foam manufacturers will need to have a greater focus on their installation and treatment as detailed in 9705. My assessment relates to ceiling only application and expires with the permission under the BCA and is not applicable under BCA 2019 unless a new test is undertaken. I also note that the installation and fixing system is not a controlled criteria under BCA 2019. Another disappointment. I am curious as to Warringtons statement on the uncertainty of the fire resistance test. Particularly given that AS ISO 9705 is a reaction to fire test and not a Fire Resistance Test. I am not sure I have seen anyone use PIR or PUR or Phenolic in a FRL test. I am also sure that after a number of tests over the past year that Kingspan would be in a very similar position and would be better suited to improve their products capacity to be used where a Group number <4 is achieved. I also find it curious that the NSW FAQ document recently released makes reference to PUR and PIR but not Phenolic. Look forward to chatting soon. 156 By late-February 2019, in accordance with the strategy promulgated in the Project Shield and Sword Document, certain persons at Kingspan had sent emails largely in the form of the First Scripted Email (attaching the Kingspan Exova Report and the Barnett Report) to several market participants, including building professionals, architects, and insurers. Kingspan also sent letters to various regulators that deployed similar wording to the First Scripted Email, albeit those letters contained more detail than the First Scripted Email. 157 Mr Gibson gave evidence that he did not observe a discernible impact from the emails that were sent in the form of the First Scripted Email. Accordingly, Mr Gibson said, in or around early-April 2019, Kingspan arranged for the video recording of the testing undertaken by Exova to be edited so as to incorporate a written and voice-over narration (hereafter, the "Narrated Video"). 158 In reality, and although nothing turns on it, it seems that the Narrated Video had been planned from the outset of Project Shield and Sword. By email to Mr Anderson sent on 18 February 2019 (the same day that Mr Gibson shared the Project Shield and Sword Document with Kingspan's Australian senior management), Mr Gibson stated as follows: Can we quickly obtain a copy of the video showing the PIRmax material tested to 9705 at Warrington's so we can reference it. Neil we will need Radhika to put together a very quick presentation for us. I will brief you on it today but as a heads up it will involve you as a voice over introducing the test, the video of the test and then a quote from Jonathan Barnett's report. It needs to be very factual, accurate and concise in what it presents, the video will tell a thousand words so [not] much else is needed. 159 In any event, Kingspan produced the Narrated Video and uploaded it to YouTube as an "unlisted video", meaning only those persons provided with its URL could view it (that is, the Narrated Video could not be accessed by using YouTube's search function). The Narrated Video featured the following voice-over, which it is convenient to replicate in full (as transcribed by Pirmax's solicitors): On 12 December 2018, Kingspan engaged an independent NATA accredited test laboratory to conduct an AS/ISO 9705 test in accordance with AS 5637 on Pirmax's 60mm Pirmax HR panel white product. This is an unedited video of that AS/ISO 9705 fire test. The outcome of the test was Pirmax's 60mm Pirmax HR panel white product reached flashover in less than 40 seconds. As at 1 April 2019, Pirmax promotes the 60mm Pirmax HR Panel White product as achieving a group 1 rating under AS/ISO 9705, AS 5637. This means the Pirmax HR panel white product should last 20 minutes under this test. The test starts at 2:00 minutes. [test commences, fire lit] 15 seconds – the blaze has reached the ceiling. 25 seconds – a thick smoke starts to form on the ceiling. 35 seconds – flames breach the door. 39 seconds – flashover occurs. Flashover is recorded once the Heat Release Rate (HRR) measured in the compartment reaches 1,000 kW. 60 seconds – the room is at the catastrophic failure point, completely engulfed by flames and thick black smoke. Effectively hitting flashover before 2 minutes of burn time is a group 4 outcome. While this product is being widely promoted by its manufacturer as Group 1 compliant under AS 5637.1 this test has determined it to be group 4, and not fit for purpose as an insulated soffit lining under either the Australian or New Zealand construction codes. … 160 Also in early-April 2019, Kingspan developed a second scripted email template, which was to be used when providing the Narrated Video to recipients (the "Second Scripted Email"). The Second Scripted Email read as follows (emphasis original): Dear xyzz For your information as a follow up to our earlier conversation, please see the following video link to the independent AS/ISO 9705 fire test Kingspan sponsored at Warringtonfire on the 12th of December 2018 on PIRmax HR Panel White 60mm product. PIRmax HR Panel White 60mm AS/ISO 9705 Fire Test Video: [URL identified] The fire test is in real time and was conducted independent to Kingspan on product sourced in Melbourne direct from a PIRmax distributor. The test was supervised and witnessed by an independently engaged qualified fire engineer arm's length to Kingspan in fact no Kingspan employees were present at the test. The resulting independent report produced by the engineer subsequent to the test, was provided to PIRMax on the 12th February 2019 following a number of formal complaints by Kingspan to PIRmax about their performance claims. To date the product continues to be promoted by PIRmax as Group 1 Compliant under AS5637 meaning it should last 20 minutes in this test before reaching flashover. The test report on PIRmax HR Panel White 60mm insulation board confirmed a Group 4 outcome with total Flashover occurring in 39 seconds as depicted in this video. Yours truly 161 There was evidence that, in April and May 2019, certain Kingspan employees sent emails largely in the form of the Second Scripted Email (which contained the URL to the Narrated Video) to the New South Wales Department of Fair Trading, the Victorian Building Authority, the Department of Mines Industry Regulation and Safety, as well as several building professionals, architects, and insurers. There was also evidence of Kingspan employees continuing to send emails in the form of the First Scripted Email during that period. 162 For convenience, I shall refer to the emails sent on behalf of Kingspan from February 2019 onwards (being those in the form of the First Scripted Email, by which the Kingspan Exova Report and the Barnett Report were provided) and in April and May 2019 (being those in the form of the Second Scripted Email, by which a link to the Narrated Video was provided) collectively as the "Project Shield and Sword Emails". 163 Although Mr Gibson gave evidence that the Project Shield and Sword Emails were sent to a limited number of recipients, it was nonetheless clear that they brought about the effect that Kingspan desired (at least to some extent). There was evidence of builders (or other building professionals, such as surveyors, project managers or superintendents), apparently having received the Project Shield and Sword Emails, rejecting the HR Panel Product for use in building projects. Indeed, there was evidence of one instance in which the HR Panel Product was directed to be removed from a building in which it had already been installed, apparently in light of the information contained in the Project Shield and Sword Emails (including the Narrated Video). 164 As already recorded, the proceeding was commenced by originating application dated 17 May 2019, by which Pirmax also claimed interlocutory relief. In particular, Pirmax sought to enjoin Kingspan from publishing, broadcasting, conveying or disseminating, relevantly, the Narrated Video and any further Project Shield and Sword Emails. 165 At the first return of the application before Davies J on 17 May 2019, Kingspan undertook to remove the Narrated Video from YouTube by 4:00 pm (WST), Saturday 18 May 2019, and immediately to cease and desist from publishing, broadcasting, disseminating or otherwise exploiting the Narrated Video in any publication, medium or forum whatsoever by itself or by any of its agents or representatives. Part 6: The ISO3 Product 166 In early 2019, Pirmax began to develop what became the ISO3 Product. The ISO3 Product is similar to the HR Panel Product, both chemically (it is likewise a modified polyisocyanurate rigid thermal panel) and in the manner in which it is manufactured, but it has a thicker aluminium foil facing. 6.1 The ISO3 Product reports 167 As with the HR Panel Product, several of the reports relied upon by Pirmax in respect of the ISO3 Product were also in evidence. They were: (a) a test report by Exova entitled "Wall and ceiling lining tested in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015" and dated 18 March 2019 and a classification report entitled "Classification of a wall and ceiling lining to AS 5637.1:2015" dated 29 April 2019 (so as to avoid unnecessary reference to both reports, and given they convey the same results, I shall instead refer only to the classification report; hereafter the "Pirmax Exova ISO3 Report"). (b) test reports prepared by the AWTA issued on 18 June 2019, 17 March 2020 and 18 March 2020 with test numbers "19-002612", "20-000989" and "20-000991", respectively. (c) a report by Acronem entitled "RE: Seismic Fixing Requirements – PIRMAX ISO3 with Hilti X-IE 6" and dated 20 December 2019. (d) a series of reports by Ignis ranging from 11 May 2019 to 17 February 2020 concerning the ISO3 Product. 168 It is unnecessary at this juncture to describe in detail all of the reports that were in evidence in respect of the ISO3 Product. However, like the Pirmax Exova Report in respect of the HR Panel Product, the Pirmax Exova ISO3 Report assumes significance in respect of the ISO3 Product. It was the primary report upon which Pirmax relied in support of the performance claims that it made about the ISO3 Product. Subsequent reports produced by Acronem and Ignis relied on the results that it contained. 6.1.1 The Pirmax Exova ISO3 Report 169 As it did with the HR Panel Product, in order to obtain a group classification for the ISO3 Product, Pirmax engaged Exova to carry out a fire test of the ISO3 Product. Exova performed that test on 5 March 2019, in respect of which it produced the Pirmax Exova ISO3 Report. As the Pirmax Exova ISO3 Report recorded, the test specimen comprised of a wall lining of "70 mm thick double aluminium foil faced (embossed) polyisocyanurate PIR panels (Pirmax ISO3)", which were used to line three walls and the ceiling of the test room (that is, in accordance with AS 5637.1). Relevantly, under the heading "Classification", the Pirmax Exova ISO3 Report stated as follows (errors original): The test was performed in accordance with the requirements of AS ISO 9705 – 2003 (R2016) and AS 5637.1:2015 with the purpose of determining the Group Number that may be assigned to the material using the classification schemes given in AS 5637.1:2015. AS 5637.1:2015 allow the classification of materials by Group Number, which indicates the amount of time taken for the material being tested to reach flashover under AS ISO 9705 – 2003 (R2016) test conditions. AS 5637.1:2015 define flashover to be a Heat Release Rate of 1 MW, so materials are classified, in accordance with AS 5637.1:2015, by the time taken for the Heat Release Rate, as measured during the AS ISO 9705 – 2003 (R2016), to reach 1MW as per the scheme below: • Group 1 – Materials that does not reach flashover when exposed to 100 kW for 600s followed by exposure to 300 kW for 600s. • Group 2 – Materials that reaches flashover following exposure to 300 kW within 600s after not reaching flashover when exposed to 100 kW for 600s. • Group 3 – Materials that reaches flashover in more than 120s but within 600s when exposed to 100 kW. • Group 4 – Materials that reach flashover within 120s when exposed to 100 kW. The material subjected to this AS ISO 9705 - 2003 R2016 test achieved a Heat Release Rate of 1 MW after 207 seconds exposure to a 100 kW heat source. Therefore the system has achieved a classification of Group 3. … Table 3 Test results Criteria Results Group number 3 SMOGRARC (in m2s-2 x 1000) 133.8 170 Several of the other reports summarised at [167] are based on, and therefore incorporate, the conclusions expressed in the Pirmax Exova ISO3 Report—relevantly, that the ISO3 Product achieved a group classification of 3 when tested to AS ISO 9705 and AS 5637.1. 6.2 Marketing the ISO3 Product 171 Mr Lewinsohn gave evidence that Pirmax marketed the ISO3 Product by issuing technical data sheets and installation guides that, initially, it provided to its distributors and direct accounts, as well as customers and potential customers by email; and, later, by publishing those documents on its website. It also provided some of the reports listed at [167] to its distributors, direct accounts, and customers (or potential customers). 172 Mr Lewinsohn gave evidence that the technical data sheets and installation guides were based on the information contained in the Pirmax Exova ISO3 Report, as well as one of the reports prepared by Ignis. To take one example, a technical data sheet produced in respect of the ISO3 Product included the following representations in respect of fire resistance performance: Achieves a Group 3 BCA/NCC fire classification when tested to Wall and ceiling lining tested in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015 … PIRMAX ISO3 PANEL PRODUCT TESTING Complies to AS/NZ 4859.1 and NCC/BCA Compliant Facing Foil (Silver) Wall and ceiling lining tested in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015 Group 3 Tested to installation method using Hilti X-IE 6 fasteners and PIRMXISO3 embossed foil tape … … 173 Additionally, Pirmax published information about the ISO3 Product on its website, which included representations equivalent to those contained in the technical data sheets issued in respect of the ISO3 Product (as set out in the preceding paragraph). 6.3 Kingspan's concerns about ISO3 performance claims 174 Mr Gibson gave evidence that Kingspan became concerned that Pirmax's claims in relation to the fire performance of the ISO3 Product were inaccurate. The gravamen of Kingspan's complaint was that Pirmax relied upon a test of the ISO3 Product in silver finish only, whereas the advertising materials and technical data sheets for the ISO3 Product contained representations as to its fire resistance performance without differentiation as to its colour finish. That is, those materials contained representations to the effect that the ISO3 Product achieved a group 3 classification in accordance with AS ISO 9705:2003 and AS 5637.1:2015, irrespective of whether it had a silver, white or black finish. 6.4 Kingspan's testing of the ISO3 Product 175 In light of its concerns, Kingspan wrote to Pirmax (via their respective solicitors) requesting copies of the test reports relied upon by Pirmax in support of its fire performance claims for the ISO3 Product. It did not receive a response. Kingspan thereafter arranged for a sample of the ISO3 Product in white finish to be tested by Exova. That testing occurred on 28 October 2019. Kingspan engaged Dr Barnett to attend the testing and produce a report of his observations. Exova produced two similar test reports each dated 11 November 2019. Like the two reports produced by Exova for Pirmax, one was a detailed "test report" and the other a somewhat more concise "classification report" (again, so as to avoid unnecessary reference to both reports—given they convey the same conclusions—I shall refer to the classification report only as the "Kingspan Exova ISO3 Report"). Dr Barnett produced a report of his observations, the final version of which was dated 20 December 2019 (the "Barnett ISO3 Report"). 176 Exova did not perform a test on the ISO3 Product in black finish. Kingspan asserted that, in the absence of Pirmax producing a test report for the ISO3 Product in black finish, it lacked reasonable grounds for representing that the ISO3 Product in black finish achieved a group 3 classification. 6.4.1 The Kingspan Exova ISO3 Report 177 The executive summary to the Kingspan Exova ISO3 Report recorded as follows: This report documents the findings of the reaction-to-fire test of a wall and ceiling lining undertaken on 28 October 2019 in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015. The test specimen consisted of Polyisocyanurate (PIR) foam panels laminated with embossed aluminium foil skins (white and silver coloured) on both sides, as nominated by the test sponsor. The boards were fixed to the internal lining of the test room with the white coloured foil facing inside the room using timber screws and plastic fasteners. A summary of the classifications achieved in accordance with AS 5637.1:2015 is provided in Table 1. Table 1 Classification in accordance with AS 5637.1:2015 Criteria Results Group number 4 smograrc (in m2/s2 x 1000) 138.5 178 Then, under the heading "Classification", the Kingspan Exova ISO3 Report stated, relevantly, as follows: AS 5637.1:2015 allows the classification of materials by group number – this indicates the amount of time taken for the material being tested to reach flashover under AS ISO 9705:2003 (R2016) test conditions. AS 5637.1:2015 defines flashover to be a heat release rate of 1 MW, so materials are classified, in accordance with AS 5637.1:2015, by the time taken for the heat release rate to reach 1 MW. The group classifications are: • Group 1 – Materials classified as Group 1 do not reach flashover after ten minutes exposure to a heat source delivering 100 kW immediately followed by a further ten minutes exposure to 300 kW. • Group 2 – Materials classified as Group 2 reach flashover after ten minutes of exposure to a 100 kW heat source. • Group 3 – Materials classified as Group 3 reach flashover after two minutes, but before ten minutes of exposure to a 100 kW heat source. • Group 4 – Materials classified as Group 4 reach flashover before two minutes of exposure to a 100 kW heat source. The material subjected to this AS ISO 9705:2003 (R2016) test achieved a heat release rate of 1 MW after 93 seconds exposure to a 100 kW heat source. Therefore, the system has achieved a classification of Group 4. … 6.4.2 The Barnett ISO3 Report 179 The Barnett ISO3 Report was published by Basic Expert Pty Ltd (of which Dr Barnett was the managing director). The Barnett ISO3 Report recorded that, on 28 October 2019, Exova conducted a test on "the 40 mm white Pirmax ISO3 Panel System", which test (along with aspects of the assembly of the test room) Dr Barnett witnessed. The Barnett ISO3 Report described its scope as being "focused on answering questions contained within the 25 October 2019 letter from [Kingspan's solicitors] contained in Appendix B". The report then sets out those questions, together with Dr Barnett's responses to them, under the heading "[q]uestions by HSF". Question one concerned the compliance requirements in the NCC 2019 concerning fire hazard properties, and needn't here be restated. The remaining questions and answers are set out below (errors original): 1.6.2 Question 2 – Identify and explain the results of the Exova ISO3 test by reference to your observations and the Exova ISO3 report. ANSW: The Exova report confirms my observations that the tested panel system reached flashover within 93 seconds from the start of the fire exposure. As shown in Figure 2, this means that the tested panel system has a group number of 4. This indicates the material falls under the most hazardous classification and is not permitted for use as a wall and ceiling lining material in Class 2 to 9 buildings as specified in Specification C1.10 of the BCA. 1.6.3 Question 3 - State whether the results of the Exova ISO3 test determined any (and if so, what) group number for: (a) The ISO3 product specimen which was the subject of the test. ANSW. Yes. The ISO3 Panel achieved a Group Number of 4. (b) Variants of the ISO3 product manufactured in another colour facing, thickness or size. ANSW. No. Variations to the tested configuration should be assessed as materials manufactured in another color facing or thickness may lead to a considerable variation in the fire performance of the system. This is primarily due to different thermal properties specifically radiant heat absorption, transmission and reflection. These properties affect heat transfer to and from the lining, flame spread rate on the lining and the heat release rate (which directly impacts time to flashover). For example, a dark color has a different emissivity than a light color for a given lining. In practical terms, the radiant heat transfer is directly proportional to the emissivity. Part 7: The Australian Consumer Law claims 7.1 Legislative scheme 180 The ACL was introduced by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), and commenced on 1 January 2011. 181 Chapter 2 of the ACL is entitled "General protections". It contains s 18, which prohibits a person from engaging, in trade or commerce, in conduct that is misleading or deceptive, or that is likely to mislead or deceive. Section 18 of the ACL is the successor to the much-litigated s 52 of the Trade Practice Act 1974 (Cth). 182 Chapter 3 of the ACL is entitled "Specific protections". It contains s 29, which provides, relevantly, as follows: 29 False or misleading representations about goods or services (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or (b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or (c) make a false or misleading representation that goods are new; or (d) make a false or misleading representation that a particular person has agreed to acquire goods or services; or (e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or (f) make a false or misleading representation concerning: (i) a testimonial by any person; or (ii) a representation that purports to be such a testimonial; relating to goods or services; or (g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or (h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or (i) make a false or misleading representation with respect to the price of goods or services; or (j) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; or (k) make a false or misleading representation concerning the place of origin of goods; or (l) make a false or misleading representation concerning the need for any goods or services; or (m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3‑2); or (n) make a false or misleading representation concerning a requirement to pay for a contractual right that: (i) is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3‑2); and (ii) a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law). … 183 Section 33 of the ACL provides as follows: A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods. 7.2 Relevant legal principles 184 In Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, French CJ and Kiefel J observed as follows (at 364 [5]): The cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts of all levels. 185 Indeed, the principles to be applied have been the subject of extensive judicial consideration and are not materially in dispute. Here, the conduct said to have fallen foul of the requirements of the ACL all involved the making of representations about Pirmax's products. It was accepted that all of it was engaged in in trade or commerce. What remains in dispute is whether, or to what extent, it was relevantly misleading or deceptive. 186 Whether conduct is misleading or deceptive, or is likely to mislead or deceive, is an objective question of fact that the court must determine for itself: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, 341-342 [102] (Gummow, Hayne, Heydon and Kiefel JJ) (hereafter, "Campbell v Backoffice Investments"). The central question is whether the impugned conduct, viewed as a whole, has a sufficient tendency to lead a person exposed to it into error; that is, to form an erroneous assumption or conclusion about some fact or matter: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 197 (Gibbs CJ) (hereafter "Parkdale Custom Furniture"); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 651-652 [39] (French CJ, Crennan, Bell and Keane JJ). 187 Conduct is likely to mislead or deceive if there is a real and not remote possibility that it will do so, regardless of whether it is more or less than a 50 per cent chance: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82, 87 (hereafter, "Global Sportsman"; Bowen CJ, Lockhart and Fitzgerald JJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450, 459 [22] (Wigney, O'Bryan and Jackson JJ). It is not sufficient that impugned conduct merely has a tendency to cause confusion or wonderment. Something more is required: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45, 87 [106] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) (hereafter, "Campomar Sociedad, Limitada"); Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, 443 [8] (French CJ, Crennan and Kiefel JJ) (hereafter, "Google v ACCC"). 188 It is not necessary to prove an intention to mislead or deceive, nor that the impugned conduct misled or deceived anyone in fact: Parkdale Custom Furniture, 197 (Gibbs CJ); Google v ACCC, 443-444 [9] (Grench CJ, Crennan and Kiefel JJ). While evidence that a person was, in fact, misled may be probative, it is not essential and does not itself establish a contravention of the prohibition to which s 18 gives effect: Global Sportsman, 87 (Bowen CJ, Lockhart and Fitzgerald JJ). Further, conduct may be found to be misleading or deceptive, or likely to mislead or deceive, even where the persons to whom the conduct was directed were not actually misled or deceived: Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96, [4], [54] and [64] (Allsop CJ, Jagot and Lee JJ). A person will engage in misleading or deceptive conduct by passing on misleading information given to him or her by others, unless that person disclaims any belief in the truth or falsity of that information: Yorke v Lucas (1985) 158 CLR 661, 666 (Mason ACJ, Wilson, Deane and Dawson JJ). Whether a corporation that publishes or passes on the misleading representation of another has itself engaged in misleading or deceptive conduct will depend on whether it would appear to ordinary and reasonable members of the relevant class of persons that the corporation has adopted or endorsed that representation: Google v ACCC, 446 [15] (French CJ, Crennan and Kiefel JJ). 189 Allegations of breach of s 18 of the ACL call for the impugned conduct to be assessed as a whole, in all of the circumstances that attend it: Parkdale Custom Furniture, 199 (Gibbs CJ); Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592, 605 [39] (Gleeson, Hayne and Heydon JJ) ("Butcher v Lachlan Elder Realty"). To look merely at isolated parts of a person's conduct without considering their effect as a whole is to invite error: Butcher v Lachlan Elder Realty, 625 [109] (McHugh J, dissenting), endorsed in Campbell v Backoffice Investments, 341-342 [102] (Gummow, Hayne, Heydon and Kiefel JJ). While it is necessary to consider allegations of misleading or deceptive conduct as pleaded, such consideration must extend to all of the relevant surrounding facts and circumstances: Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672, [597] (Wheelahan J). Those relevant circumstances include the person or persons to whom the conduct was directed. In considering conduct towards a class of persons, the court must isolate by some criterion or criteria a representative member of the class for assessment: Campomar Sociedad, Limitada, 84-85, [101]-[103] (Gleeson CJ, Gaudron McHugh, Gummow, Kirby, Hayne and Callinan JJ). 190 There is generally no relevant distinction between the phrases "misleading or deceptive" in s 18 of the ACL and "false and misleading" in s 29: Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682, [14] (Gordon J); Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (2021) 158 ACSR 31, 51 [88] (O'Callaghan J). 191 There is, however, a distinction between the language used in s 18 and the language used in s 33 of the ACL. As has been observed, "[t]he latter has been said to apply to a narrower range of conduct" and what is required under s 33 "is that there be an actual probability that the public would be misled": Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73, 82 [44] (Allsop CJ); see also Australian Competition and Consumer Commission v H J Heinz Company Australia Ltd (2018) 363 ALR 136, 144 [37] (White J). 7.3 Pirmax's ACL claims 7.3.1 Alleged misleading representations made by Kingspan 192 In its amended concise statement filed in the proceeding, Pirmax alleges that by publication of the Project Shield and Sword Emails, the Narrated Video, the Kingspan Exova Report, and the Barnett Report, Kingspan engaged in conduct, in trade or commerce, that was misleading or deceptive or likely to mislead or deceive, or that constituted the making of false representations that a product (namely the HR Panel Product or Pirmax products generally) was of a particular standard, quality or grade. By that conduct, Kingspan is alleged to have contravened ss 18 and 29 of the ACL. It is convenient to replicate the relevant paragraphs of the amended concise statement: 12 The…[Narrated] Video and/or the [Project Shield and Sword] Emails contained statements and representations which were and are false, misleading or deceptive or likely to mislead or deceive, including: (a) The [HR Panel and ISO3] Product is unsafe for use as an insulated wall or ceiling lining. (b) The [HR Panel and ISO3] Product is not fit for purpose as insulated wall or ceiling lining under the Australian and New Zealand construction codes. (c) The [HR Panel and ISO3] Product fails fire resistance testing to the standard applicable for use as insulated wall or ceiling lining. (d) PIRmax widely and falsely promotes the [HR Panel and ISO3] Product as compliant and/or fit for purpose as insulated ceiling/soffit lining under the Australian and New Zealand construction codes, when in fact the product is not compliant and/or fit for this purpose. (e) PIRmax widely and falsely promotes the [HR Panel and ISO3] Product as compliant with the applicable Australian standard (AS 5637.1: 2015) to last 20 minutes of fire before failure (flashover at 1,000 kW heat release rate), when in fact failure is reached in less than 40 seconds. (f) PIRmax widely and falsely promotes the [HR Panel and ISO3] Product as compliant with the applicable Australian standard to achieve a Group 1 rating, when in fact the product is compliant only with a Group 4 rating (flashover within 2 minutes). (g) PIRmax widely and falsely promotes the [HR Panel and ISO3] Product as fire resistance tested according to the applicable Australian standard, when in fact it was not tested according to the conditions prescribed by that standard (AS ISO 9705-2003). 12A Further and alternatively, the [Project Shield and Sword Emails] and/or the Barnett Report contained statements and representations which were and are false, misleading or deceptive, or likely to mislead or deceive, in representing that the Barnett Report was that of an independent expert whose opinion was reliable for that reason, in circumstances including: (a) the instructions provided by Kingspan's solicitors to Dr Barnett to the effect that Kingspan's view was that Pirmax's advertising material (a) overstated the performance of some of Pirmax's products and (b) reference incorrect test results and specifications, and pre-empted the opinion or statements sought by Kingspan from Dr Barnett; (b) Dr Barnett's omission and/or failure to refer to the following in the Barnett Report, or at any later time: (i) the fact that an alternative physical test specimen configuration was authorised by AS ISO 9705 for ceiling soffit lining (Annexure G2); (ii) the physical testing of the product on 14 April 2016 was in accordance with that alternative physical test specimen configuration; (iii) the transitional provision contained in the BCA (2016) (Table 1, Amendment 1, Spec A1.3) that allowed Group number determinations under versions of the BCA applicable prior to 1 May 2016 to remain valid until 1 May 2019; (c) Dr Barnett was not qualified to give an expert opinion that the information contained in Pirmax's technical data sheets "is false and misleading"; (d) Dr Barnett was not independent of Kingspan but rather was and is an advocate for it; and (e) deploying the Barnett Report in the way it did, Kingspan clothed it and the statements and representations within it, with the spurious appearance of authority. 193 In its written closing submissions, Pirmax submits that the "misleading conduct claim extends beyond overt misrepresentations" and that the court is not confined to examining the contents of particular communications", in particular the Narrated Video, the Barnett Report, and the Project Shield and Sword Emails. Rather, Pirmax submits that the central question for the court is "whether the course of conduct embarked upon by Kingspan, examined as a whole, amounts to conduct that is misleading or deceptive or likely to mislead or deceive". 194 In both Pirmax's written opening and closing submissions, the allegedly misleading or deceptive conduct was distilled into the following species of representation: (a) Pirmax had no basis to claim Group 1 classification for its [HR Panel Product]; (b) the Pirmax [HR Panel] [P]roduct was not compliant with relevant standards; (c) the Pirmax [HR Panel] [P]roduct was not fit for purpose as an insulated soffit lining under the Australian construction code; (d) the Pirmax [HR Panel] [P]roduct is unsafe and dangerous, and that Pirmax sells a dangerous product or products; (e) a fire safety expert independent of Kingspan, Dr Barnett, reports that Pirmax makes product performance claims that are false, misleading or deceptive, whereas the Barnett Report was not that of an independent expert whose opinion was reliable for that reason; (f) the [Kingspan Exova] Report was an AS ISO 9705 report in respect of the [HR Panel] Product. 195 With the exception of the representation at (f) (about which more is said below), each species of representation identified in Pirmax's written submissions correlates with the representations that were pleaded. It is convenient to summarise each such species of representation. 7.3.1.1 Representation that Pirmax had no basis to claim group 1 classification 196 Pirmax submits that the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report, and the Narrated Video must be considered "individually and together". It submits that each of the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report, and the Narrated Video contained a representation that Pirmax had no basis to claim group 1 classification for the HR Panel Product, and that the HR Panel Product in fact had a group 4 classification. 197 Pirmax submits that that representation was false and misleading because, in fact, Pirmax claimed group 1 classification for the HR Panel Product in a qualified manner: namely, for "ceiling/soffit application only and relying on a ceiling-only test", which it was permitted to do by operation of the Transitional Provision. Pirmax asserts that, in that way, it did have a basis to claim group 1 classification for its HR Panel Product. 198 Pirmax submits further that Kingspan knew that Pirmax relied upon a "ceiling-only" test and the Transitional Provision, but deliberately omitted those contextual considerations from the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report, and the Narrated Video. That, Pirmax submits, was an intentional misrepresentation as to how Pirmax promoted the HR Panel Product. 199 Relatedly, Pirmax submits that Kingspan's statements to the effect that the determination of group numbers under the NCC required testing in accordance with AS 5637.1 were false and misleading. That was said to be so because those statements ignored the possibility that group numbers might be determined in reliance upon the Transitional Provision (that is to say, under the alternative testing configuration permitted by AS ISO 9705). 200 Further, Pirmax submits that it relied on the expertise of fire safety experts in claiming group 1 classification for the HR Panel Product; and that, in those circumstances, it was misleading of Kingspan to represent that Pirmax had no basis upon which to claim that classification. 7.3.1.2 Representation that the HR Panel Product was not compliant with relevant standards 201 This species of representation overlaps with the previous one. Pirmax submits that Kingspan's "statements and conduct imputed that the [HR Panel Product] was not compliant with relevant building standards". That imputation was said to arise from Kingspan's statements to the effect that the relevant NCC required testing to be conducted in accordance with AS 5637.1, as well as its statements to the effect that the HR Panel Product achieved a group 4 classification, and not a group 1 classification. 202 Pirmax repeats the submission that that imputation was false because the HR Panel Product was properly classified as group 1 in the qualified manner described above (at [197]); and that it was permitted to determine a group number using the alternative (namely, ceiling-only) test configuration available by combination of AS ISO 9705 and the Transitional Provision. Pirmax maintains that the HR Panel Product was compliant with the relevant standards; namely, the "transitional provisions which permitted Group 1 classification relying on a ceiling-only test at the relevant time". It charges Kingspan with having deliberately omitted reference to those critical matters from the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report, and the Narrated Video. By doing so, it says Kingspan engaged in conduct that was relevantly misleading or deceptive. 7.3.1.3 Representation that the HR Panel Product was not fit for purpose 203 As has been seen, the Narrated Video contained the following representation: While this product is being widely promoted by its manufacturer as group 1 compliant under AS 5637.1, this test has determined it to be group 4 and not fit for purpose as an insulated soffit lining under the Australian or New Zealand construction codes. 204 Pirmax again submits that that representation was false and misleading because the HR Panel Product was properly classified as group 1 for ceiling/soffit application only (having been tested in and determined as such in a way permitted under the Transitional Provision). 7.3.1.4 Representation that the HR Panel Product is unsafe and dangerous 205 Pirmax submits that the representation that the HR Panel Product was unsafe and dangerous arose in a number of ways. Principally, Pirmax focuses on the language that was used in the Project Shield and Sword Emails—particularly, the reference to "an unsafe situation" (extracted from the Barnett Report) in the First Scripted Email—and in the Narrated Video (which it described as adopting language of "urgency" which was described as "rather disturbing"), as well as the video footage in the Narrated Video (which was paired with what Pirmax described as a "dramatic narration"). At its core, Pirmax's submission is that the combination of those verbal and visual elements, together with the endorsement of Dr Barnett (who naturally occupied a position of some authority in relation to matters of fire safety) created the imputation that the HR Panel Product was unsafe or dangerous. In its written closing submissions, Pirmax submits: The strong and clear impression from the [Project Shield and Sword Emails, Barnett Report and the Narrated Video] is that using the [HR Panel Product] is unsafe and dangerous. That message is deployed by the use of the language of urgency, danger (the "rather disturbing" Group 4 classification with flashover achieved in about 40 seconds; creating an "unsafe situation"), visually through the confronting medium of the video images and the dramatic narration, and all presented as the result of independent testing and the expert judgment of fire specialists, Warringtonfire and Dr Barnett, the Chair of Engineers Australia's Society of Fire Safety. The graphic impact of the visuals in the Narrated Video was clearly apparent to Mr Gibson. As Mr Gibson wrote to Keith Anderson, "the video will tell a thousand words…" 206 Pirmax submits that "[p]roper use of the [HR Panel Product] was not unsafe or dangerous". It repeats its submission (above, [197]) that the HR Panel Product was properly classified as group 1 for ceiling/soffit application and was compliant with the Transitional Provision, which permitted group 1 classification based on a ceiling-only test: as use of the HR Panel Product in that manner was permitted, it could not be dangerous. Its submissions continued: …what made Kingspan's imputation particularly false and unfair was that the Warringtonfire Test graphically depicted in the Narrated Video, showed the [HR Panel] Product burning in a wall and ceiling test whereas the [HR Panel] Product was not claimed to be Group 1 when in a wall and ceiling configuration: it was Group 1 for ceiling/soffit only… In this way the Narrated Video depicted a false scenario, as the [HR Panel] Product was not to be placed on the walls and ceiling. A fair depiction would have shown a ceiling only test. … It is reasonable to infer that Kingspan had knowledge (inter alia) that it would be misleading not to disclose the intended use or application of the [HR Panel] Product, without which information "the impression … viewers would naturally gain is that they are seeing a realistic display of how these products would perform and contribute to fire growth in a real fire" (Kingspan Group Plc v Rockwool Ltd [2011] EWHC 250 (Ch) at [165]). In the present case, the missing information is that Pirmax claimed Group 1 classification on the basis of a ceiling only test, which was the intended use and application of the [HR Panel] Product and for which it had been certified as Group 1; and it follows that the Narrated Video, which depicts the standard walls and ceiling configuration, was and is not a realistic display of how the [HR Panel] Product would perform and contribute to fire growth in a real fire. 7.3.1.5 Representation about the independence of Dr Barnett 207 Pirmax submits that an important plank of Project Shield and Sword was to present Kingspan's claims about the HR Panel Product as the independent views of Dr Barnett, a fire safety expert. That was to be achieved, most obviously, via the Barnett Report; but other communications made as part of Project Shield and Sword (including both scripted emails) sought to highlight that they contained the "independent view of the Chair of Engineers Australia's Society of Fire Safety". In its amended concise statement, Pirmax alleges that those communications were misleading "…in representing that the Barnett Report was that of an independent expert whose opinion was reliable for that reason…" 208 In its written closing submissions, Pirmax explains that that imputation is false "…because the Barnett Report was not that of an independent expert whose opinion was reliable for that reason". That was said to be so because: (a) the instructions provided by [Kingspan's solicitors] to Dr Barnett to the effect that Kingspan's view that Pirmax's advertising material (a) overstated the performance of some of Pirmax's products and (b) referenced incorrect test results and specifications, and pre-empted the opinion or statements that were sought by Kingspan from Dr Barnett; (b) Dr Barnett's omission and/or failure to refer to (inter alia) the alternative physical testing configuration authorised by AS ISO 9705 for ceiling soffit lining, and the transitional provision in the BCA that allowed Group number determinations under versions of the BCA applicable prior to 1 May 2016 to remain valid until 1 May 2019; (c) Dr Barnett was not qualified to give an expert opinion that the information contained in Pirmax's technical data sheets "[wa]s false and misleading"; (d) Dr Barnett was not independent of Kingspan but rather was and is an advocate for it; and (e) deploying the Barnett Report in the way it did, Kingspan clothed it and the statements and representations within it with the spurious appearance of authority. 209 Pirmax identifies what it describes as evidence pointing to Dr Barnett's lack of independence. That evidence needn't be traversed here, for the reasons articulated above (at [51]-[60]). It suffices to record that Pirmax took the view that Kingspan had a level of influence over Dr Barnett (and the content of the Barnett Report) that was inconsistent with his being independent; and that Dr Barnett acted, rather, as an advocate for Kingspan. Pirmax also submits that: Dr Barnett's omission and/or failure to refer to the ceiling only application point, the alternative physical testing configuration in AS ISO 9705 contemplating ceiling soffit lining and the transitional provision in Revisions 0, 0.1,0.2 and 0.3 [of the Barnett Report]...is probative of Dr Barnett's lack of independence. 7.3.1.6 Representation that the Kingspan Exova Report was an AS ISO 9705 test report 210 Pirmax did not plead that Kingspan engaged in misleading or deceptive conduct (or conduct that was likely to mislead or deceive) by representing that the Kingspan Exova Report was an AS ISO 9705 "test report" applicable to the HR Panel Product. Nonetheless, it identifies, in its written closing submissions, that the Kingspan Exova Report was central to the representations made in the Barnett Report, the Project Shield and Sword Emails and the Narrated Video. That suggestion picks up (and expands upon) Pirmax's assertion that it remains to be seen whether the product that Exova tested was in fact the HR Panel Product. 211 Pirmax submits that the representation that the Kingspan Exova Report was an AS ISO 9705 report in respect of the HR Panel Product was false. As explained in its written closing submissions: The assertion is false because the [Kingspan Exova Report] was not in accordance with the requirements of AS ISO 9705, because that standard requires that a report must state the material that was tested, and the [Kingspan Exova Report] did not do so, instead referring to the material as "Product X"… Further, the test and the test report failed to comply with clause 11 of AS ISO 9705, especially clause 11.1 and clause 11.3. The HR [Panel] Product was a product certified for use on the ceiling as a lining, but not on walls (it was certified for use within a wall as insulation only). Accordingly and for this reason, Pirmax did not publish an installation guide or instructions for the use of [the HR Panel Product] as a wall surface lining… Thus, for the purposes of AS ISO 9705, a ceiling only test was appropriate as it tested the product mounted in the same way as in practical use. The [Kingspan Exova Report] failed to disclose that the product tested was not installed in the same way as in practical use or that it was installed using an installation guide or method that was not approved or sanctioned by the manufacturer or supplier of the [HR Panel Product]. 212 Although the alleged representation seems to focus on the qualities of the test report, Pirmax's submissions were broader, and were directed to whether the test performed by Exova (and not just the test report that Exova produced) complied with AS ISO 9705. 213 In any event, Kingspan submits that, having not been pleaded, the submission that Pirmax sought to advance was not a matter of which it had given notice. I accept that that is so. Pirmax should (and will) not now be permitted to advance the allegation that the representation was made, nor that it was relevantly false, misleading or deceptive. Although Kingspan led evidence by which it sought to establish that the product tested by Exova on 12 December 2018 was, in fact, the HR Panel Product, and to provide an explanation for why the Kingspan Exova Report referred to that product as "Product X", it is conceivable that it might have led additional evidence (for example, evidence from the authors of the report, or from the distributor from which the product was acquired) or pursued additional matters in cross-examination in response to the allegation. Although, for reasons that will become clear, it doesn't much matter, Pirmax cannot expect to be permitted to rely upon a contention of which it did not give notice. 7.3.2 Kingspan's defence to Pirmax's claims 214 Kingspan's defences to Pirmax's allegations are mounted on multiple fronts. 215 First, Kingspan disputes that it made the representations that Pirmax attributes to it. It submits, rather, that it "disseminated" the results of the testing that was performed by Exova and witnessed and reported on by Dr Barnett. In doing so, Kingspan submits, it identified that the opinions were those of Exova and Dr Barnett; it did not adopt those or any wider representations as its own. 216 Second and in any event, Kingspan submits that the representations that it did make were narrower than those alleged by Pirmax—namely, to the following effect: (a) Pirmax promoted the HR Panel Product as achieving group 1 classification when tested to AS 5637.1; and (b) the Kingspan Exova Report and the Barnett Report concluded that the HR Panel Product in 60mm thickness and white finish achieved a group 4 classification when tested to AS 5637.1. 217 Otherwise, Kingspan's defence to Pirmax's claims is coextensive with its cross-claim. It rests upon the proposition that the performance characteristics claimed by Pirmax in respect of the HR Panel Product were not open to be claimed in accordance with the provisions of the NCC, and were therefore unsubstantiated. Relatedly, Kingspan maintains that the representations that it made about the HR Panel Product's performance characteristics were "factually and scientifically correct" and, therefore, not false, misleading or deceptive. Rather, Kingspan submits that it was simply (and legitimately) "calling out" the false performance claims of a competitor. 218 Kingspan acknowledged the "qualified manner" in which Pirmax sought to market the HR Panel Product (namely by marketing it for use in ceiling or soffit applications only, and relying on the concession or exemption provided by the Transitional Provision). However, it submits that there was nothing in the NCC that permitted that qualified approach. It submits that Pirmax's interpretation of the Transitional Provision was contrary to established principles of statutory interpretation and, in any event, was no answer to its representation that the HR Panel Product had been tested in accordance with AS 5637.1. That representation, Kingspan maintains, was false: the HR Panel Product was not subjected to testing in accordance with AS 5637; it was subjected to a ceiling-only test. 219 It is worth repeating the terms of the Transitional Provision. It appeared as a "note" in the schedule of referenced documents contained in the NCC 2016: No. Date Title BCA Clause(s) AS 5637.1 2015 Determination of fire hazard properties Spec C1.10 Part 1 Wall and ceiling linings [Note: Test reports indicating the group number of wall and ceiling linings determined under versions of the BCA applicable prior to 1 May 2016 remain valid until 1 May 2019.] 220 Kingspan accepts that if a test report that met the description contained in the Transitional Provision existed, then such a test report would remain valid until 1 May 2019. That is, such a test report could validly be relied upon for the purpose of classifying a product's group number until 1 May 2019. However, Kingspan submits that the reports relied upon by Pirmax did not meet the description contained in the Transitional Provision, as only one of them was a test report, and none of them was produced prior to 1 May 2016. 221 More specifically, Kingspan submits that the Pirmax Exova Report was not a test report that determined the HR Panel Product's group number (given Exova's unwillingness to recommend a group number expressed in that report); and, moreover, was not a test report indicating a group number determined under the previous version of the NCC (NCC 2015), given that it was produced on 9 May 2016 (after NCC 2016 commenced to have effect). Kingspan also submits that it was impermissible for Pirmax to attempt to rely upon the Pirmax Exova Report in combination, or "as a package", with the Acronem Report, the Ignis Report, and the Ignis Certificates because the underlying test report did not exist until after NCC 2015 was replaced. 222 Consequently, Kingspan submits, Pirmax's reliance on the Pirmax Exova Report, the Acronem Report and the Ignis Report was impermissible insofar as concerned the determination of a group number for its HR Panel Product. It followed that any performance claims made on the basis of such a determination were not claims that it was open to Pirmax to make. 223 In any event, Kingspan submits that the Transitional Provision would not have enabled Pirmax to claim, as it did, that the HR Panel Product was compliant with NCC 2016, or that it had been tested in accordance with AS 5637.1. Rather, assuming the relevant test report fell within the scope of the Transitional Provision, it would have had the effect of extending its validity until 1 May 2019. In other words, even if Pirmax were able to avail itself of the Transitional Provision, that would not confer on Pirmax an entitlement to claim that the HR Panel Product achieved a group 1 rating when tested in accordance with AS 5637.1. It would, instead, simply permit Pirmax to continue until 1 May 2019 to make performance claims based upon testing completed under NCC 2015 (that is, testing done in accordance with AS ISO 9705, using a ceiling-only configuration). 224 Further, and on the footing that Pirmax was unable to rely upon the Transitional Provision (and was, therefore, required to comply instead with NCC 2016), Kingspan submits that nothing in NCC 2016 permitted Pirmax to market the HR Panel Product as achieving a group 1 classification for "ceiling/soffit application only and relying on a ceiling-only test". It submits that the group number designated to a particular product could not be tailored to specific applications; rather, the group number denoted the achievement of a particular standard according to the results of testing in accordance with AS 5637.1. Accordingly, a product could not have a group 1 classification for certain applications but not for others; it could only have a single classification, which was to be determined by testing in accordance with AS 5637.1. 225 Relatedly, Kingspan submits that Pirmax's reference to the HR Panel Product as being suitable for use in the "ceiling-only" or "soffit-only" did nothing to correct or qualify what was otherwise a false statement (namely that the product was tested in accordance with AS 5637.1 and the requirements of NCC 2016). Put another way, the fact that the marketing material for the HR Panel Product promoted its use in certain applications, Kingspan submits, was neither here nor there; it could not detract from or qualify that which the NCC required. 226 Against that background, the nub of Kingspan's submissions in response to Pirmax's claims under the ACL was that the representations that it made in respect of the HR Panel Product were not misleading, deceptive or false, and were therefore not unlawful. Rather, Kingspan submits that, by its conduct, it should be understood to have provided accurate information to the market. 7.3.3 Consideration 7.3.3.1 Did Kingspan make the representations alleged? 227 I accept that Kingspan did relevantly make the representations that are alleged against it. I do not consider that, by disseminating the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report and the Narrated Video (or any of them individually), it was merely passing on, without adoption or endorsement, the results of the testing that had been done by Exova and witnessed and reported upon by Dr Barnett. 228 Although the Project Shield and Sword Emails emphasised the independence of both Exova and Dr Barnett, there is an artificiality to Kingspan now asserting that it merely intended to pass on the information contained in the Kingspan Exova Report or the Barnett Report for what it was worth, and that it disclaimed any belief in the truth or falsity of that information. It was, of course, possible for Kingspan to emphasise the independence of Exova and Dr Barnett while simultaneously adopting or endorsing the conclusions that they expressed. I consider that that is what occurred. More importantly, I consider that ordinary and reasonable members of the class of persons who received the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report, and the Narrated Video (or any of them) would consider that Kingspan adopted or endorsed the information contained therein. 229 Although not determinative, that conclusion is informed by the reality that the relevant communications were quite obviously made as part of a counter-marketing campaign that Kingspan had been waging against Pirmax for more than two years. It had been making similar representations about the HR Panel Product's performance characteristics to building industry participants over that period. That is not a criticism; it simply serves to highlight the artificiality—apparent when viewing the impugned conduct as a whole in all of the circumstances—of Kingspan's suggestion now that it disclaimed any belief in the truth or falsity of the information that it conveyed. It adopted or endorsed (indeed, weaponised) the conclusions that Exova and Dr Barnett reached. It did so effectively and with enthusiasm. Those communications were a key element of its counter-marketing arsenal. 230 The next point to consider is whether the representations that Kingspan did make conveyed the meanings that Pirmax attributed to them. As has been noted already, Kingspan submits that any representations that it made were narrower than those that Pirmax attributes to it. 231 Some of the representations that Kingspan made plainly conveyed the meaning that Pirmax attributed to them. Examples are the representations that Pirmax had no basis to claim group 1 classification for its HR Panel Product, that the HR Panel Product was not compliant with relevant standards, and that it was not fit for purpose. 232 Others require more analysis. 233 I shall refer, first, to Pirmax's suggestion that Kingspan made representations to the effect that the HR Panel Product was unsafe and dangerous. There is likely no distinction to be drawn between those descriptors; but I shall employ them collectively in the same way as they were during the trial. 234 As already recorded, Pirmax submits that the language used in the Project Shield and Sword Emails and in the Narrated Video was that of "urgency" and "danger", and that the video footage of the Narrated Video was dramatic, depicting as it did a room becoming engulfed in flames in a short period. That, in turn, created the impression that the HR Panel Product was unsafe and dangerous. I accept that submission, at least at a comparative level. By nature, any representation to the effect that the HR Panel Product did not comply with the NCC was tantamount to a representation that it was unsafe, at least compared to products that did. I accept that Kingspan made representations to the effect that the HR Panel Product was not compliant with the NCC and, therefore, could not safely be used. 235 The alleged representations concerning Dr Barnett, both as pleaded and as later distilled in Pirmax's submissions, could perhaps have been more clearly put. Plainly, Dr Barnett did report that Pirmax made product claims that were false, misleading or deceptive. As much is clear from the terms of the Barnett Report. The focus, then, is not on what Dr Barnett said or did not say, but on what Kingspan represented about Dr Barnett's independence and the reliability of his opinion. At this juncture, it suffices to record that I accept that Kingspan made representations to the effect that Dr Barnett was an independent expert (that is, independent of Kingspan). 7.3.3.2 Were Kingspan's representations false, misleading, or deceptive? 236 Central to Pirmax's claims is the notion that it was entitled to represent, as it did, that the HR Panel Product attracted a group 1 rating under the NCC. Pirmax maintains that the Transitional Provision entitled it to make that claim: in other words, that it was entitled to claim the group 1 rating on the basis of the ceiling-only test that was performed on 14 April 2016. 237 That supposition was flawed. The Transitional Provision served only to preserve, for the duration of NCC 2016, the validity of test reports that indicated group numbers determined before 1 May 2016. The HR Panel Product's group number was not determined until after 1 May 2016. 238 I accept Kingspan's submission that, for a test report to "remain" valid from 1 May 2016, it must have been valid prior to that date (and, it follows, must have existed prior to that date). I also accept Kingspan's submission that the reference to "test reports indicating a group number…determined under versions of the [NCC] applicable prior to 1 May 2016" is properly to be construed as contemplating determinations made during the operation or currency of a previous version of the NCC. It did not operate to preserve determinations made after 1 May 2016. 239 From 1 May 2016, Pirmax could only claim a group number based on testing conducted in accordance AS ISO 9705—and, in particular, under the alternative ceiling-only test configuration that annex G contemplated—if that testing was the subject of a test report that was produced prior to 1 May 2016 and indicated that group number. 240 Insofar as concerns the HR Panel Product, there was only one test report relied upon by Pirmax: namely, the Pirmax Exova Report. It did not indicate any group number for that product and, in any event, was produced after 1 May 2016. That the testing to which that report related was conducted prior to 1 May 2016 does not alter those realities. The other reports upon which Pirmax relied (namely, the Acronem Report and the Ignis Report) were not "test reports"; and, in any event, they were likewise produced after 1 May 2016. Such reports as Pirmax had acquired were not sufficient to invoke the operation of the Transitional Provision. They were not competent to afford its HR Panel Product a group 1 classification under NCC 2016. 241 That is so even before attention turns to AS 5637.1. Even if Pirmax had acquired a valid test report indicating a group number for the HR Panel Product determined prior to 1 May 2016 and based on testing under AS ISO 9705, that would not have authorised its claim that the HR Panel Product had been tested in accordance with AS 5637.1. AS 5637.1 did not permit ceiling-only tests. Pirmax could not properly represent that the HR Panel Product had been tested in accordance with AS 5637.1 because it had not been. 242 Throughout the duration of NCC 2016, Pirmax was not able to claim a group number for the HR Panel Product based on the ceiling-only test to which it had been subjected. There was no such thing under NCC 2016 as a group 1 classification for ceiling/soffit applications only. Save insofar as the Transitional Provision was invoked—and, here, it was not—group classifications under NCC 2016 were to be determined following testing that was compliant with AS 5637.1; that is, wall and ceiling testing only. That was so irrespective of a test product's intended application. 243 It follows that Kingspan's representations to the effect that Pirmax had no basis to claim a group 1 classification for the HR Panel Product were accurate, and not relevantly false, misleading or deceptive. 244 Kingspan's representations to the effect that the HR Panel Product was not compliant with relevant standards, was not fit for purpose as an insulated soffit lining under the NCC 2016, and was unsafe and dangerous fall into a slightly different category. True it is that the HR Panel Product did not meet the performance characteristics that Pirmax claimed. That reality arises from the proper construction of the terms of the NCC, given that the HR Panel Product had not been subjected to the requisite testing. However, that alone does not discount the possibility of the HR Panel Product achieving compliance with the NCC once the correct testing was undertaken. In other words, the fact that Pirmax had no basis to claim that the HR Panel Product achieved a group 1 rating does not, of itself and automatically, lead to the conclusion that the HR Panel Product would fail when subjected to testing in accordance with AS 5637.1. 245 The only evidence of the HR Panel Product being subjected to a wall and ceiling test in accordance with AS 5637.1 was the testing that Kingspan commissioned Exova to undertake on 12 December 2018, the results of which were reported in the Kingspan Exova Report and the Barnett Report. As has already been recorded, Pirmax disputed that the product tested was the HR Panel Product, and disputed that the testing accorded with the requirements of AS ISO 9705. Kingspan's representations—specifically, that the HR Panel Product was not compliant with required standards, was not fit for purpose as an insulated soffit lining under the NCC 2016, and was unsafe and dangerous—rest upon acceptance of the results conveyed in the Kingspan Exova Report and the Barnett Report. 246 It is necessary, then, to resolve whether the test performed by Exova on 12 December 2018 was a valid test of the HR Panel Product conducted in accordance with AS ISO 9705. I consider that it was. 247 As recorded earlier, Mr Gibson gave evidence that three packs of the HR Panel Product in 60 mm thickness and in white finish were purchased from 4 Corners Insulation and couriered to Exova's test facility. The product tested was not identified in the Kingspan Exova Report as the HR Panel Product, but instead recorded as "Product X". That was due to Exova's policy in such circumstances—that is, in circumstances where it was engaged by a company to test a competitor's product, as to which see [140] above. 248 There was other evidence consistent with the fact that the product tested by Exova was the HR Panel Product. The Barnett Report described the subject panel of the test as consisting of a "white Pirmax HR 60 mm HR Panel". Mr Bradley, the director of Greenspec Solutions Pty Ltd, one of Pirmax's distributors, gave evidence that he was "very familiar with" the HR Panel Product and that the embossment of the HR Panel Product's foil face was a distinguishing feature of that product. Mr Bradley also identified a photograph of the product tested by Exova as the HR Panel Product. There was a series of emails between representatives of Kingspan and Exova regarding the testing to be performed and referring to the HR Panel Product. None of that evidence was directly challenged by Pirmax. 249 There was, on the other hand, no evidence to suggest that the product that Exova tested was not (or might not have been) the HR Panel Product. For reasons already addressed, it is of no moment that the HR Panel Product was referred to as "Product X" in the Kingspan Exova Report. In the absence of there being some basis for thinking that Kingspan set out to discredit the HR Panel Product by testing something else, I am satisfied on the balance of probabilities that the product that was tested was what it was said to have been: the HR Panel Product. 250 Pirmax goes further and submits that the test that Exova undertook was not one that complied with the requirements on AS ISO 9705. That, it was said, was a consequence of the product having been configured otherwise than in the manner in which it would normally be used. Pirmax maintains that the HR Panel Product was used only as a ceiling/soffit lining and so ought to have been tested in that configuration. 251 I reject that submission. As has already been rehearsed, NCC 2016 required that group classifications be determined on the basis of testing that complied with AS 5637.1. The test that Exova conducted on 12 December 2018 complied with that requirement: that is to say, involved application of the HR Panel Product in a wall and ceiling configuration. 252 Kingspan's representations to the effect that the HR Panel Product was not compliant with relevant standards were accurate and, therefore, not relevantly false, misleading or deceptive. The HR Panel Product achieved a group 4 classification when tested in accordance with AS 5637.1. That being so, it did not satisfy the minimum performance requirements contained in the NCC. 253 Similarly, I consider that Kingspan's representations to the effect that the HR Panel Product was not fit for purpose as an insulated soffit lining under the NCC were accurate and, therefore, not relevantly false, misleading or deceptive. The meaning to be attributed to the expression "fit for purpose" was not elaborated upon. Nonetheless, that expression is deployed in part A of the NCC. Specifically, A2.1 of the NCC 2016 provided as follows: A2.1 Suitability (a) Every part of a building must be constructed in an appropriate manner to achieve the relevant requirements of the NCC, using materials, products, forms of construction and designs being fit for the purpose for which they are intended. (b) For the purposes of (a), a material, product, form of construction or design is fit for purpose if it is— (i) supported by evidence of suitability in accordance with A2.2; and (ii) constructed or installed in an appropriate manner. 254 It is consistent with the object of the NCC, as a performance-based code, to assess a product's fitness for purpose by reference to its satisfaction of NCC requirements. If a product fails to meet the performance requirements set out in the NCC, it is relevantly not "fit for purpose". Indeed, quite apart from the meaning attributed to that expression in the NCC, I cannot conceive of any circumstance in which a lining product that cannot be used in Australia by reason of its failure to meet the requirements of the NCC would nonetheless be considered "fit for purpose". When tested in accordance with AS 5637.1, the HR Panel Product achieved a group 4 rating. It could not properly be used as a wall or ceiling lining under the NCC (which required a group 3 rating or better). It was not fit for purpose for use as a wall or ceiling lining. 255 I also consider that Kingspan's representations to the effect that the HR Panel Product was unsafe were accurate and, therefore, not false, misleading or deceptive. What is meant by such a representation, understood in its proper context, should be borne in mind. Wall linings, by themselves, will rarely if ever be unsafe. The label is applied in the context of fire safety: that is, how the product will perform when exposed to fire. It is that potential exposure that is the source of danger. In context, "unsafe" implies that a product is, when exposed to fire, prone to fail more quickly than is preferable (or, as in this case, required). 256 That understood, the suggestion that the HR Panel Product was unsafe—that is to say, not of a fire safety standard that met what the NCC required—was not false, misleading or deceptive. For the reasons that have already been explored, it was accurate. 257 Although it is unnecessary to do so, the above analysis also resolves the sixth (un-pleaded) species of alleged misrepresentation, namely that the Kingspan Exova Report was an AS ISO 9705 test report in respect of the HR Panel Product. For the reasons stated, I would have accepted that it was. Accordingly, I would not have found that any representation to that effect was false, misleading, or deceptive. 258 That leaves only the representations concerning Dr Barnett. I have accepted that Kingspan made representations as alleged to the effect that Dr Barnett was an independent expert. Dr Barnett's independence and expertise, in turn, carried the implication that his opinion was credible and reliable. Nonetheless, I do not consider that any of the statements that Kingspan made about Dr Barnett's independence in the Project Shield and Sword Emails or the Barnett Report were false, misleading or deceptive. 259 The fact that Dr Barnett possessed considerable expertise could not be (and was not) disputed. At the time of giving evidence in the matter, he had over 42 years' experience in the area of fire safety engineering, and had considerable experience as an expert witness in Australia, the United States of America, and the Netherlands. He gave evidence that he taught fire safety engineering at Worcester Polytechnic Institute in Massachusetts for 28 years, at which institute he was a professor. At the time of the trial in the matter, he was the National Chair of the Society of Fire Safety Australia. 260 Pirmax instead attacked Dr Barnett's independence. Amongst other matters, Pirmax pointed to the fact that Dr Barnett had done work for Kingspan previously (as well as a related entity, described as "Kingspan Panels"), that he had had discussions with Mr Anderson regarding the HR Panel Product prior to his engagement by Kingspan's solicitors, that he knew (or was alleged to have known) that Kingspan intended to use his report to make demands of Pirmax, that he communicated with certain Kingspan employees following the test performed by Exova on 12 December 2018 but prior to preparing his report, and that the Barnett Report included the statement (communicated to Dr Barnett by Kingspan) that the technical and marketing materials in respect of the HR Panel Product are "false and misleading". 261 I do not consider that Kingspan's engagement of Dr Barnett, via its solicitors, involved any compromise of his independence. Dr Barnett gave evidence that, in connection with the preparation of his reports, he understood and complied with the court's Practice Note, including the Code of Conduct annexed thereto. Dr Barnett gave evidence that the opinions expressed in his reports were not influenced by Kingspan, and were based wholly or substantially on his specialised knowledge. He also referred to the code of ethics by which he is bound as an engineer, which he said required him to "call out" statements that he considered to be false or misleading. 262 Dr Barnett's oral evidence in this matter was consistent. During his cross-examination, the following exchanges took place between he and senior counsel for Pirmax: Well, you understand that Pirmax's position regarding your purported expert evidence in this case is that you are acting as an advocate for Kingspan; do you understand that?---I understand that's what is being said, yes. And do you understand that they're saying, in effect, that you're just a hired gun to Kingspan?---That's what they're saying. Well, what's your response to that?---It's completely false. At the time of providing your report to Herbert Smith Freehills expressing the opinion that Pirmax's technical data sheets were false and misleading, what did you understand the purpose of you expressing that opinion?---Being I was asked to give an opinion on the veracity of the data sheets – and I did that – I also, in looking at the data sheets, was concerned that they might be misused and so I spoke up about that. … What did you understand Kingspan's purpose to be for you to express an opinion concerning the technical data sheets of Pirmax's HR products, in particular, whether they were false and misleading?---I have no idea of what they wanted that information for. Did you not consider it a relevant matter of inquiry?---For – relevant in terms of - - - Well, let's start with what use might be made of your opinion upon that matter?---I have no - - - Did you not consider that that was relevant to inquire into?---If a manufacturer asks about a the veracity of another manufacturer's products, they can use that any way they want, and I have no idea what that end use is. Is that what you thought would happen in the instance when you were engaged to express that opinion?---I really didn't give much thought to this. I was asked the question and I answered it. You didn't give any thought to the question of the use to be made of your opinion on that matter?---No. So that the opinion, for example, might be disseminated to any audience?---I have no idea. How would I know what they were going to do or planned on doing. Does the code of ethics touch upon the topic of the use that may be made of opinions expressed by fire engineers?---I mean, not directly. I don't quite understand what you mean by "the use". If somebody asks an opinion of me and I have the technical knowledge to answer the question, then I answer the question. Are you aware of the practice of a professional engineer who issues an opinion upon a matter stating in the report a limitation upon the use and the persons who may rely upon the report?---The practice in terms of what? The practice in terms of providing opinions, and the use and the persons who may rely upon it?---I don't quite know where you're going and what you're asking, because if I'm asked a question, I give an answer. If something is not clear about my answer, I will clarify it. I don't really look to see why people are asking the questions. But you mentioned before that you understand one manufacturer might obtain an opinion from a professional fire engineer as to another manufacturer's products. Was that the purpose that you had in mind as a possibility when you were required to prepare your report?---I hadn't thought about what they were going to do with it but, yes, that certainly would have been a possibility. Let me see if this is a fair summary of your evidence on this point. At the time you prepared and provided the report to Herbert Smith Freehills, you had not thought about what use was to be made of your report?---That's correct. Further, you had no idea of the persons to whom the report might be provided?---Well, I knew that the report might be provided to people at Kingspan, but no other ideas. That's correct. … But you accept that the report would have been used to address Pirmax because, after all, you had expressed an opinion on Pirmax's product?---Not sure what you mean by the word "address Pirmax". It would be – they would do something to – it would have something to do with Pirmax, yes. Well, let's explore that. At the time, what do you imagine the – did you imagine what possibilities may have been to address Pirmax and its products?---No. So to summarise, you prepared your report without knowledge of what use Kingspan was to make of it?---Correct. You didn't inquire of Kingspan what use was to be made of it?---Correct. You didn't inquire of Herbert Smith Freehills what use was to be made of it?---Correct. I suggest to you, Dr Barnett, that you well knew your report was going to be used – it was going to be sent to Pirmax and it was going to be used to put pressure on Pirmax regarding the marketing of its products, in particular the HR product that was the subject of your report?---So – perhaps Kingspan was going to use it for that. Perhaps Kingspan was going to buy Pirmax. Perhaps – I don't know what they were going to do with it. It's information about a competitor product and companies ask other companies for that – or look for that information about their competitors and other people in the field all the time. There are many uses that are used for this information, right? That's all I know. Well, I'm putting to you that you did know that the purpose of the report was to be used to put pressure on Pirmax?---Not necessarily to put pressure on Pirmax but, certainly, I would imagine you would communicate that at some point, particularly if the use of that information would be dangerous. In other words, the information in the technical guide from Pirmax. I would hope somebody would say something about it. 263 I accept Dr Barnett's evidence. The opinions that he expressed in the Barnett Report were his own and were arrived at independently of any held within Kingspan. That his views were "weaponised" as part of Project Shield and Sword is neither here nor there. Kingspan cannot be criticised for wanting to make as much as it could of the views that Dr Barnett expressed; and the fact that it did so is not evidence of some want of independence on Dr Barnett's part. The alignment of Dr Barnett's opinion with Kingspan's interests arose as a result of the correct construction of the Transitional Provision. 264 Pirmax sought to highlight Dr Barnett's "omission and/or failure to refer to the ceiling-only application point, the alternative physical testing configuration authorised by AS ISO 9705 contemplating ceiling soffit lining and the Transitional Provision". That failure was said to be "probative of Dr Barnett's lack of independence". I do not accept that proposition. It rests upon an incorrect construction of NCC 2016 (and the Transitional Provision in particular). Dr Barnett did not omit or fail to mention "the ceiling-only application point". NCC 2016 did not provide for any such testing configuration and the Transitional Provision did not apply. 265 The conclusions stated in the Barnett Report bear repeating: 3.1 Anticipated Group number ratings 3.1.1 I reviewed the material in four websites, one for Pirmax panels and three for Reflex Insulation [one of Pirmax's distributors] as well as the Pirmax HR-Panel Technical Data Sheet V.0 which was provided to me… They refer to the White Pirmax panel that was tested, and both indicate a Group number of 1 for the product. These documents (including the Reflex Technical Data website) imply that the Group number was determined in accordance with AS 5637.1 and testing to AS ISO 9705. 3.1.2 I reviewed the IGNIS Certificate dated 21 January 2019. The Certificate references an IGNIS compliance report IGNS-6408 I02R00 dated 08.01.19 which is not available on the website. 3.1.3 The test referred to in the IGNIS Certificate 6408-03 I02R01 of the White Pirmax panel, is where the Pirmax panel lined only the ceiling of the test room. 3.1.4 The National Construction Code references AS 5637.1 which then specifies the use of ISO AS 9705 to determine Group numbers. AS 5637.1 section 5.2.1 states "Tests of walls or ceilings alone shall not be used for determining group number or SMOGRARC". 3.1.5 Therefore, the test of the ceiling (soffit) referred to in the IGNIS Certificate 6408-03 I02R01 did not conform to the National Construction Code's requirement for the use of AS 5637.1 to determine a Group number. 3.2 Test results 3.2.1 As tested in accordance with the National Construction Code's requirement to use AS 5637.1 the tested White Pirmax panel • failed to achieve the criteria for a Group number of 1 • achieved a Group number of 4 … 3.3 Misleading information 3.3.1 In light of my findings in 3.2.1…the information referred to in 3.1.1 is false and misleading, i.e. the product has a Group number of 4 NOT a Group number of 1. 3.3.2 The IGNIS engineering evaluation is wrong as the Pirmax HR Panel (white) has a Group number of 4 when tested and not 1 as Hughes-Brown reports. The tested Group number is the relevant one, not one based on an Engineering Evaluation Certificate. 3.3.3 The use of a product with a Group number of 4 in locations within a building where a Group number of 1 is required by the Deemed-to-Satisfy provisions of the National Construction Code is not only contrary to the appropriate provisions of the building code but may result in not achieving the performance requirements of the NCC and may result in an unsafe situation. … 4.2 Pirmax Group Number claim 4.2.1 As stated in 3.3.1 the Pirmax Foil-Faced Panel (white) does not have a Group number of 1 when tested to AS5637.1 (ISO9705). 4.2.2 As stated in 3.1.4 the test may not be used for a soffit application only to determine the Group number or the SMOGRARC. 4.3 Testing of wall and ceiling wall systems 4.3.1 The NCC is clear that products tested to AS5637.1 (ISO9705) must include a complete system and the test results may not be used to evaluate a wall system or a ceiling system if the complete system (wall and ceiling configuration) isn't tested. 4.4 Information within the Pirmax Technical Data Sheets and test reports via the website 4.4.1 As stated in 3.3.1 the information within the Pirmax Technical Data Sheets and test reports regarding the group number is misleading. The product has a Group number of 4, not 1. 266 It can thus be seen, from [3.1.4] and [3.1.5] of the Barnett Report, that Dr Barnett explained why Pirmax's reliance on ceiling-only testing (or the "alternative testing configuration") was impermissible for the purposes of determining a group number. His reasoning in that regard corresponds to a correct construction of the Transitional Provision. 267 The statements regarding Dr Barnett made by Kingspan in the Project Shield and Sword Emails also bear repeating. The First Scripted Email (extracted in full above, [152]) included the following statements: The test was held on 12 December 2018 and was witnessed by Dr Jonathan Barnett who is a leading fire safety engineering expert and Chair of Engineers Australia's Society of Fire Safety. … Dr Barnett observed that "The failure criteria of flashover (as determined by a maximum heat release rate of 1 MW), was reached in about 40 seconds." I also note Dr [B]arnett's comment that "The use of a product with a Group number of 4 in locations within a building where a Group number of 1 is required by the Deemed-to-Satisfy provisions of the National Construction Code is not only contrary to the appropriate provisions of the building code but may result in not achieving the performance requirements of the NCC and may result in an unsafe situation." I reiterate that this is the independent view of the Chair of Engineers Australia's Society of Fire Safety. … 268 The Second Scripted Email included the following statement (again, extracted in full above, [160]): The fire test is in real time and was conducted independent to Kingspan on product sourced in Melbourne direct from a PIRmax distributor. The test was supervised and witnessed by an independently engaged qualified fire engineer arm's length to Kingspan in fact no Kingspan employees were present at the test. The resulting independent report produced by the engineer subsequent to the test, was provided to PIRMax on the 12th February 2019 following a number of formal complaints by Kingspan to PIRmax about their performance claims. To date the product continues to be promoted by PIRmax as Group 1 Compliant under AS5637 meaning it should last 20 minutes in this test before reaching flashover. 269 In light of the conclusion I have reached regarding Dr Barnett's independence, I do not consider there to be anything in those statements that contravenes the statutory prohibitions contained in ss 18 or 29 of the ACL. 270 Pirmax also seeks to make something of Dr Barnett's communications with Mr Hughes-Brown (set out above, [154]-[155]). It submits that Dr Barnett's email "raises questions of [Dr] Barnett's independence" as it "has the potential to exert commercial pressure, which pressure is being applied by Dr Barnett, and which is in line with Kingspan's interests". 271 It is to be remembered that Dr Barnett was the Chair of the Engineers Australia's Society of Fire Safety. Mr Hughes-Brown was a member of that society. Given the role that Dr Barnett occupied and the opinions that he expressed in the Barnett Report, it is hardly surprising that he would contact Mr Hughes-Brown to discuss the reports that Mr Hughes-Brown had produced. As Dr Barnett said in cross-examination (emphasis added): Well, I'm putting to you that you did know that the purpose of the report was to be used to put pressure on Pirmax?---Not necessarily to put pressure on Pirmax but, certainly, I would imagine you would communicate that at some point, particularly if the use of that information would be dangerous. In other words, the information in the technical guide from Pirmax. I would hope somebody would say something about it. 272 Indeed, subsequent to his exchange with Mr Hughes-Brown, on 25 April 2019, Dr Barnett sent an email to Kingspan's solicitors, in which he stated, relevantly, as follows: However, as discussed, a professional engineer concerned about performance, knows that to use the older approach may result in an unsafe Group number (one that overstates the safe use of a product). That he would produce a recent revision to his earlier assessment is likewise appalling. The point is that he knows the older approach may result in unsafe designs. Now that he's been given the test report, he is ethically and professionally bound to retract his assessment; especially considering how egregious the results are (Group 1 instead of Group 4). When he states "I have not reviewed or endorsed the installation in the configuration detailed within the test report as achieving a Group 1. I understand that a number of these tests have occurred in late December but we are only seeing the results and reports now. This certainly changes the approach needed for the safe use of PIR or PUR or Phenolic." It sounds like he knows that the product isn't safe. 273 I do not accept Pirmax's submission that Dr Barnett's communicating with Mr Hughes-Brown in that way betrayed any lack of independence. I consider, rather, that he held genuine concerns about the assessments that Mr Hughes-Brown had made relating to the HR Panel Product, which he saw fit to raise with Mr Hughes-Brown directly, given the professional obligations that they each held. 274 Finally, Pirmax seeks to highlight various correspondence between Kingspan's solicitors and Dr Barnett, which it alleges points towards Dr Barnett's lack of independence from Kingspan. That included, for instance, the letter of instructions to Dr Barnett, by which Kingspan's view that Pirmax's advertising material overstated the performance of some of Pirmax's products and referenced incorrect test results and specifications was conveyed. In turn, Pirmax alleged, that letter improperly "pre-empted the opinion or statements sought by Kingspan from Dr Barnett". 275 I do not consider that any of the communications emanating from Kingspan's solicitors to Dr Barnett had the character that Pirmax seeks to attribute to them. They neither occasioned nor established any want of independence on Dr Barnett's part. The observations of Callinan J in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209, 266-267 [279] are apposite: For…legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt. I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. However it is the valuer who has to give the evidence and who must make the final decision as to the form that his or her valuation will take. It will be the valuer and not the legal advisors who is under oath in the witness box and bound to state his or her opinions honestly and the facts accurately. The lawyers are not a valuer's or indeed any expert's keepers… 7.3.3.3 Some other matters 276 Pirmax also seeks to highlight Kingspan's reliance upon the Transitional Provision in marketing its own products, in particular its K10 product. Pirmax evidently perceives some inequity in Kingspan's reliance upon the Transitional Provision (and the more relaxed testing rules that applied prior to 1 May 2016) while simultaneously attacking Pirmax for attempting to do precisely the same. There is, however, a key distinction: the test reports indicating a group number for Kingspan's product pre-dated 1 May 2016. Kingspan's conduct might, to some, have appeared opportunistic; but it was, nonetheless, permissible. 277 I also note for completeness that there was evidence of one instance in which Kingspan had inaccurately represented that its K10 product achieved a group 1 rating in accordance with AS 5637.1 (instead of in accordance with AS ISO 9705, as was the case). Pirmax drew attention to that misrepresentation. However, Mr Anderson gave evidence that upon discovering that misrepresentation, it was promptly withdrawn. Indeed, on 29 November 2017, Mr Anderson sent an email to several Kingspan employees, including Mr Gibson, with the subject line "K10 brochures", which read as follows (errors original): Dear all, I have noticed an error in the Sept 2017 version of the k10 brochures where under Fire Performance it states "NCC group Number in accordance with AS 5637.1". This is incorrect as we do not currently determine the group number under 5637 because this standard requires the material to be tested in both the walls and ceilings of the test room. We have tested K10 and K10 WHITE installed only in the ceiling of the test room in accordance with previous versions of the NCC which is acceptable until 2019. Can you please make amendments to the K10 FM and K10 WHITE brochures as indicated with yellow 'sticky notes' on page on the attached pdf's. This amendment has been approved by SAI Global for the renewal of the K10 CodeMark accreditation once they receive a copy of the amended draft. This clarifies the test conditions in the interim until we complete the transition to NCC 2019 requirements during 2018. … 278 Mr Anderson also gave the following evidence in re-examination: …I had discovered that reference was on the brochure and, as I say in the email, that was – that's incorrect to use that reference. I don't know why it was included in there on that line but it was. I discovered that. It was corrected within a few days after that… 279 More to the point, the representations that Kingspan made in marketing its own products do not bear upon any analysis of Pirmax's conduct. 7.3.4 Conclusion on Pirmax's ACL claims 280 Pirmax has failed to establish that any of the representations that it attributes to Kingspan was misleading or deceptive within the meaning of s 18 of the ACL, or false and misleading within the meaning of s 29 of the ACL. 7.4 Kingspan's ACL claims 7.4.1 Alleged misleading representations made by Pirmax—HR Panel Product 281 By its cross-claim, Kingspan alleges that various representations that Pirmax made in respect of the HR Panel Product were (or were likely to be) false, misleading or deceptive in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL. 282 It is convenient to replicate the relevant parts of Kingspan's further amended concise statement of cross-claim: 6. Since at least 2016, Pirmax has published advertising and promotional material in relation to the HR Panel Products (Pirmax HR Panel Advertising Material), including: (a) technical data sheets and brochures (Technical Data Sheets); (b) the Pirmax website, located at <www.pirmax.com.au> (Pirmax Website); (c) test reports accessible on the Pirmax website (Test Reports). … 8. From at least 2016, Pirmax, through the Pirmax HR Panel Advertising Material, represented (and has continued to represent) that (HR Panel Representations): (a) all the HR Panel Products achieve a Group 1 classification under the NCC/BCA in force; (b) all the HR Panel Products achieve a Group 1 classification under the NCC/BCA in force when tested in accordance with the Australian Standard AS 5637.1 compliant to the NCC specification C1.10; (c) all the HR Panel Products achieve a Group 1 classification under the NCC/BCA in force when tested in accordance with the Australian Standard AS ISO 9705:2003 compliant to the NCC, specification C1.10; (d) all the HR Panel Products have a Group 1 classification under the NCC/BCA in force for use as ceiling or soffit lining; (e) the Test Reports indicate a Group 1 rating of HR Panel Products determined under a version of the BCA applicable prior to 1 May 2016 and remain valid; and (f) the HR Panel Products comply, alternatively have been evaluated and considered to comply, with the requirements of the BCA in force for use in internal ceilings as an exposed or concealed soffit lining. 283 In Kingspan's written closing submissions, those representations are distilled into three categories, namely: (a) all the HR Panel Products achieve a Group 1 classification when tested in accordance with AS 5637; (b) all the HR Panel Products achieve a Group 1 classification under the NCC/BCA in force; and (c) the HR Panel Products comply, alternatively have been evaluated and considered to comply, with the deemed to satisfy requirements of the BCA in force for use in internal ceilings as an exposed or concealed soffit lining, … 284 As already stated, the basis for Kingspan's cross-claim was coextensive with its defence to Pirmax's claims against it. For the reasons outlined at [214] to [226] above, Kingspan submits that the representations made by Pirmax in relation to the HR Panel Product were false, misleading or deceptive in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL. 7.4.2 Pirmax's defence—HR Panel Product 285 By its concise statement in response to Kingspan's further amended cross-claim, Pirmax denies that it made the representations alleged, and instead characterises the representations it had made as follows: 6. As to paragraph 6, subject to the identification and production of the exact references in the Pirmax Advertising Material which, it is alleged, constituted the HR Panel Representations, Pirmax says: (a) since 1 January 2016, statements made in relation to the HR Panel Products or certain of them are identified in Annexure A hereto (Statements Relating to Pirmax HR); (b) since 1 January 2016, it has relied on and made available reports relating to the HR Panel Products or certain of them identified in Annexure B hereto (Pirmax HR Reports); (c) the Statements Relating to Pirmax HR and the Pirmax HR Reports concern matters of technical complexity and expert opinion in determining the relevant requirements of the NCC/BCA, and referenced Standards, in respect of classification of the fire hazard properties of thermal insulation lining materials (classification requirements), the test methods and procedures specified by the classification requirements and the assessment of test results for the purposes of the classification requirements; (d) the Pirmax HR Reports self-evidently comprise the technical expertise and opinions of their respective specialist authors; (e) save for the statements noted below, the Statements Relating to Pirmax HR self-evidently comprise the technical expertise and opinions of their respective specialist authors; (f) the Statements Relating to Pirmax HR in items 5, 9-12, 17-20, 27 and 30-31 reported the result of the technical expertise and opinions of the respective specialist authors of the Pirmax HR Reports; (g) to the extent that any of the Statements Relating to Pirmax HR and the Pirmax HR Reports were reasonably acted on by Pirmax distributors and/or customers of Pirmax distributors, and certain direct accounts in the Market, it would be understood that such matters involved the technical expertise and opinions of such specialists not Pirmax, that the classification of the Pirmax HR Panel Products had been determined in accordance with the technical expertise and opinions of such specialists, and that Pirmax was not qualified to, and did not purport to, verify the same; (h) it otherwise does not admit the allegations. 286 Annexure A to the concise statement in response to the further amended cross-claim then excerpted various of the statements contained in the Pirmax Exova Report, the Acronem Report, the Ignis Report, the Ignis Certificates, the technical data sheets, and the Pirmax website. 287 Pirmax submits that it is "obvious but important" to recognise that the statements that it made in relation to the HR Panel Product concerned matters of technical complexity and expert opinion, specifically as to compliance with the NCC and the various standards referenced therein. Pirmax sought to distance itself from those statements, instead submitting that it relied upon them without verification. In its written closing submissions, Pirmax submits as follows: The Pirmax HR Reports and Statements relating to Pirmax HR [Panel Product] self-evidently comprised or reported the technical expertise and opinions of their respective specialist authors. To the extent that any of the Statements Relating to Pirmax HR [Panel Product] and the Pirmax HR Reports were reasonably acted on by Pirmax distributors and/or customers of Pirmax distributors, and certain direct accounts in the Market, it would be understood that such matters involved the technical expertise and opinions of specialists not Pirmax, that the classification of the Pirmax HR Panel Products had been determined in accordance with the technical expertise and opinions of such specialists, and that Pirmax was not qualified to, and did not purport to, verify the same. 288 In a similar vein, Pirmax submits that the representations that it made about the HR Panel Product were made with reference to (and were therefore qualified by) a series of reports prepared by qualified specialists, including the Pirmax Exova Report, the Acronem Report, and the Ignis Report. In its written closing submissions, Pirmax submits that: …Pirmax's statements were made in circumstances where Pirmax's distributors and direct accounts, and architects, registered building surveyors, building certifiers, fire engineers, builders and/or other participants in the building industry, when considering use of Pirmax HR in any particular application in accordance with their obligations, were provided with or had available to them copies of the Pirmax HR reports, which constituted expressions of opinion of appropriately qualified experts. 289 Further, Pirmax submits that Kingspan "pays insufficient attention to the context in which Pirmax's materials were published and to whom they are directed". Specifically, Pirmax submits that the relevant audience at which the representations were aimed were architects, registered building surveyors, building certifiers, fire engineers, builders and other participants in the building industry, and that the representations were made to those persons in order to enable them to assess and certify whether the HR Panel Product was appropriate to use in particular applications. That certification process, Pirmax submits, had to be carried out by "specialist and appropriately qualified building practitioners, such as building surveyors in Victoria, and specialist fire safety engineers, according to their professional obligations". Against that background, Pirmax submits that the representations would be understood by that professional audience, who necessarily had familiarity with the NCC and its referenced standards, and who would not be misled by the manner in which Pirmax made representations. 290 A related but distinct submission, made for the first time in its written closing submissions, was that any reference to AS 5637.1 that Pirmax made in respect of the HR Panel Product was in error, as Pirmax did not in fact rely on a report conducted in accordance with AS 5637.1. On that score, Pirmax submitts that: …the erroneous reference [to AS 5637.1] was not (and could not reasonably have been) false or misleading to those to whom it was directed, namely, architects, registered building surveyors, building certifiers, fire engineers, builders and/or other participants in the building industry. That it was an obviously mistaken reference was made clear by other references to the ceiling only test and ceiling only application in Pirmax's same materials. ... …the recipients of those materials would appreciate that the [HR Panel Product (in a white or silver finish)] was evaluated by Ignis as supporting a Group 1 classification for use in a ceiling and/or soffit application… That the Group 1 classification was for ceiling and/or soffit application only was expressly stated in Pirmax's materials. Given reliance on the ceiling only test and the ceiling/soffit only application, these specialist recipients would appreciate that reference to AS 5637 (i.e., a wall and ceiling test) was an obvious error, such that the error was not operative or material. At the very least, the reference to AS 5637 in this context was contradictory. 291 Pirmax submits, in any event, that the mistaken reference to AS 5637.1 was immaterial; the key point was not the specific standard to which the HR Panel Product was tested (that is, whether it was tested to AS ISO 9705 or to AS 5637.1), but the fact that it achieved a group 1 rating for ceiling or soffit applications only in accordance with the Transitional Provision. 292 Pirmax submits that, on its proper construction, the Transitional Provision permitted ceiling-only test reports issued or published after 1 May 2016 to remain valid until 1 May 2019. That, Pirmax submits, was because the date of 1 May 2016 relates to the version of the NCC on which the testing is based, rather than the date of the test report itself. Accordingly, it submits that it was permissible for it to rely upon the Pirmax Exova Report as a test report indicating the group number of the HR Panel Product. Relatedly, Pirmax submits that Exova's unwillingness to classify a group number for the HR Panel Product was irrelevant; the Pirmax Exova Report nonetheless fell within the scope of the Transitional Provision because it indicated "in the sense of pointing to or providing ground for" a group number for the HR Panel Product, despite not doing so expressly. 7.4.3 Consideration of HR Panel Product representations 7.4.3.1 Did Pirmax make the representations alleged? 293 I accept that Pirmax made the representations alleged by Kingspan. Pirmax's defence on this score involved at least a measure of obfuscation. Pirmax denied that it made the representations alleged; but then listed, as an annexure to its concise statement in response to Kingspan's further amended cross-claim, various statements that were made in respect of the HR Panel Product. Many of the statements there set out plainly conveyed the meaning attributed to them by Kingspan. In any event, the documents to which the court was taken speak for themselves (the contents of several of which—including the technical data sheets and various reports—have already been summarised above). 294 To take one example, one of the technical data sheets published by Pirmax (of which there were several iterations) included the statement that the HR Panel Product "[a]chieves a Group 1 BCA/NCC fire classification when tested to AS 5637.1(ISO 9705), compliant to the National Construction Code, NCC/BCA Volume 1; Specification C1.10". That data sheet also included the following table: Complies to AS/NZ 4859.1 and NCC/BCA Compliant Group classification AS 5637.1 (ISO 9705) Group 1 ... 295 Although it is one example only (from the significant volume of evidence tendered in the proceeding), that version of the data sheet plainly conveyed each of the representations that Kingspan pleaded. Similar statements appeared in other iterations of the technical data sheet and on the Pirmax website (for example, Pirmax made statements on its website that it achieved "Group 1 ISO 9705-2003 ceiling lining system in accordance with BCA 2016" and that "Pirmax has a Group 1, AS ISO 9705 – 2003 / AS 5637.1:2015, Determination of fire hazard properties"). It is unnecessary to traverse all of the instances in which such statements were made. It suffices to record that there were many. 296 Subsequent versions of the technical data sheet had a double asterisk preceding the words "Group classification" in the first cell of the table extracted above or after "Group 1" in the third cell (depending on the version of the data sheet). That double asterisk corresponded to a statement already extracted (above, [97]), which appeared in small text following the table or at the end of the document (again, depending on the version of the data sheet reviewed): Achieves a Group 1 classification in accordance with AS 5637.1:2015 and AS 1530.3 under BCA Clause C1.10 Clause 4 and 7 respectively. The AS ISO 9705-2003 testing included a soffit application only. 297 I do not consider that the asterisked statement (namely, "AS ISO 9705-2003 testing included a soffit application only"), to the extent that it was noticed, qualifies the conclusion that I have reached. Readers of that statement familiar with AS 5637.1 might have recognised the contradiction in claiming classification in accordance with AS 5637.1 while simultaneously stating that the testing "included a soffit application only"; but I do not consider that that would suffice to disabuse the class of persons to which that technical data sheet was directed of what it otherwise conveyed—namely, that the HR Panel Product achieved a group 1 rating when tested to AS 5637.1 (and therefore complied with the NCC). That is especially so when one considers that at least some of those technical data sheets contained images stylised as a circular rubber stamp engulfed in flames with the text "AS 5637.1 CLASSIFICATION" around the circumference of the stamp and "GROUP 1" in large text embossed across its centre. In any event, not all of the technical data sheets in evidence (some of which are summarised at [93] to [97] above) included an asterisked statement of that nature. 298 Additionally, some (but not all) versions of the technical data sheets in evidence included statements to the effect that the HR Panel Product in black finish achieved a group 3 classification or rating (compared to the group 1 rating that it achieved in silver or white finish). Plainly, a statement to that effect could not be shoehorned into all of the representations that Kingspan alleged were made—in particular, those representations to the effect that the HR Panel Product in all thicknesses and finishes achieved a group 1 rating. However, the fact that Pirmax made some statements in later versions of the technical data sheets that differentiated the HR Panel Product's performance based on its colour finish does not gainsay the reality that many of the statements that it made elsewhere were not so differentiated. Indeed, many of the technical data sheets (and other advertising and marketing materials) in evidence simply stated that the HR Panel Product achieved a group 1 classification without reference to its colour finish. 299 In any event, one of the representations alleged by Kingspan was broader in scope—namely the representation that the "HR Panel Products comply, or have been evaluated and considered to comply, with the deemed-to-satisfy requirements of the BCA in force for use in internal ceilings as an exposed or concealed soffit lining". Statements to the effect that the HR Panel Product in black finish achieved a group 3 rating would still, plainly enough, convey that meaning—albeit the group 3 rating denoted lower performance than group 1. It is difficult to see how any of the statements annexed to Pirmax's concise statement in response to Kingspan's further amended cross-claim did not convey that broader meaning—that is, that the HR Panel Product complied with the NCC for use as a soffit lining. Indeed, the nub of Pirmax's position throughout the proceeding was that the HR Panel Product complied, or had been evaluated and considered to comply, with the NCC for that limited, ceiling-only application. On its own case, then, the representations that it made in relation to the HR Panel Product were to the effect alleged by Kingspan. 300 I also consider that, by making the Pirmax Exova Report, the Acronem Report, the Ignis Report and the Ignis Certificates available to purchasers (and potential purchasers) of the HR Panel Product (including via its distributors), Pirmax adopted or endorsed the statements contained within each of them and, accordingly, should be considered to have "made" those statements in the requisite sense. Indeed, the statements contained in those reports were reproduced and published in the technical and advertising materials that Pirmax created, on the Pirmax website, and in emails sent by Pirmax employees to distributors, customers, and potential customers (albeit they were adapted or varied in some respects). At no point did Pirmax disclaim any belief in the truth or falsity of those representations. To the contrary, it embraced them wholeheartedly, using them (as it did) to support the performance claims that it made in respect of the HR Panel Product. Pirmax's contention that it merely passed on the information contained in the reports without verification cannot be reconciled with that reality. It is not to the point that those reports "comprised or reported the technical expertise and opinions of their respective specialist authors" and that "Pirmax was not qualified to, and did not purport to, verify the same". The relevant question is whether Pirmax made those statements. I consider that it did. 301 To the extent that Pirmax sought to distance itself from the impugned representations contained in the technical and advertising materials that it produced, as compared to the reports produced by others (that is, to the extent that Pirmax submitted that by creating the technical data sheets, publishing statements on its website, sending emails to distributors, customers, and so on, Pirmax was simply passing on the technical expertise and opinions of specialist authors without verification) that endeavour was beyond ambitious. All of those materials were created and disseminated by, or on behalf of, Pirmax. The representations contained therein were obviously made by Pirmax, even though they were based on the conclusions expressed in reports found elsewhere. It is artificial for Pirmax now to assert that it was merely "passing on" anything. 302 Separately, I do not accept that the class of persons to whom those representations were made would have considered that Pirmax did not "make" them by reason of the fact that they related to matters of technical complexity, or because that class of persons would have considered that Pirmax was not qualified to, and did not purport to, verify them. To the extent that Pirmax submits otherwise, those submissions likewise cannot be sustained. 7.4.3.2 Were the representations false, misleading or deceptive? 303 For the reasons earlier stated, I do not accept the construction of the Transitional Provision for which Pirmax contends. The Transitional Provision did not permit Pirmax to rely upon the Pirmax Exova Report as justification for its claims about the group number of its HR Panel Product. That report was made after 1 May 2016 and, in any event, did not indicate a group number applicable to the HR Panel Product. The Transitional Provision preserved as valid group number determinations contained within test reports made prior to 1 May 2016. It did not authorise reliance to that end upon reports or determinations that post-dated 1 May 2016. 304 Insofar as concerns Pirmax's claims about its HR Panel Product, I do not accept that it was sufficient for the Pirmax Exova Report to "point to" or "provide ground for" the determination of a group number in order that it might be understood relevantly to have "indicate[d]" it. I also do not consider that Pirmax was able to rely to that end upon the Acronem Report or the Ignis Report, neither of which was a test report, and each of which post-dated 1 May 2016. 305 As at 1 May 2016 (and thereafter), the HR Panel Product had not been the subject of a test report sufficient to invoke the operation of the Transitional Provision. That being so, Pirmax had no basis to claim that the HR Panel Product achieved a group 1 classification or rating. Indeed, Pirmax had no basis to claim that the HR Panel Product achieved any group classification or rating, given that it had not been subjected to testing in accordance with AS 5637.1, as NCC 2016 required. 306 That being so, the representations that Pirmax made to the effect that the HR Panel Product: (1) achieved a group 1 classification when tested in accordance with AS 5637.1; (2) achieved a group 1 classification under the NCC/BCA in force; and (3) complied—or, alternatively had been evaluated and considered to comply—with the deemed-to-satisfy requirements of the NCC in force for use in internal ceilings as an exposed or concealed soffit lining, were, in each case, false and, therefore, misleading or deceptive. 307 Pirmax's submission that the class of persons to which those impugned representations were directed would not be misled by them cannot be sustained. Pirmax puts that submission in two ways. First, it submits that those representations were accompanied (and therefore qualified) by the Pirmax Exova Report, the Acronem Report, and the Ignis Report, each of which constituted expressions of opinion of appropriately-qualified experts. Second, it submits that the impugned representations were made to "specialist and appropriately qualified building practitioners", and that that professional audience would not be misled by the manner in which Pirmax made its representations. 308 Those submissions assume that the class of persons to whom the impugned representations were made would have understood or appreciated that Pirmax marketed the HR Panel Product for use in a qualified manner (namely, in a ceiling-only configuration). As much was said to be apparent from the information contained in the various materials that Pirmax made available (including the reports prepared in relation to the HR Panel Product), or otherwise because of the target audience's professional qualifications or obligations—or a combination both. Either way, it was said that the representations were not apt to mislead. 309 I do not accept that submission. The professional experience possessed by members of the relevant (audience) class, and/or the professional obligations under which they operated, could not suffice to correct the falsity of the representations that Pirmax made. I do not consider that the class of persons to whom the representations were made was as sophisticated as Pirmax would have it. The representations were made to builders, architects, building surveyors, fire engineers, and a range of other building practitioners. While some members of that class might possess a working knowledge of the fire resistance requirements contained within the NCC, I do not consider that the ordinary and reasonable member of that class of persons would necessarily have such knowledge, or sufficient knowledge or expertise that he or she would be expected to discern that the statements made by Pirmax regarding the HR Panel Product were qualified in the manner for which Pirmax contended. 310 But, even assuming that the ordinary and reasonable member of that class of persons did have a detailed knowledge of the NCC and its referenced standards, it would be wrong to assume that he or she would not be misled by the representations that Pirmax made. Consider, for example, the statement that the HR Panel Product "[a]chieves a Group 1 BCA/NCC fire classification when tested to AS 5637.1(ISO 9705), compliant to the National Construction Code, NCC/BCA Volume 1, Specification C1.10". A person with detailed knowledge of both the NCC and AS 5637.1 would understand that statement according to its plain meaning—namely that the product achieved a group 1 classification under the NCC when subjected to a wall and ceiling fire test. A person without such a detailed knowledge would nonetheless probably understand that statement in the same way, albeit he or she might not know exactly what was entailed by testing to AS 5637.1. That representation is, for the reasons already explained, false; a person to whom it was made would have been misled, irrespective of his or her familiarity with the NCC and its referenced standards. 311 Pirmax's contention that such a person would not be misled rests upon an assumption that he or she would be moved to interrogate the representations that were conveyed; that they would embark upon at least some measure of review of the documentation underpinning or supporting them (including the Pirmax Exova Report, the Acronem Report, and the Ignis Report), and would arrive at an understanding that the representation was (at best) unreliable (insofar as it failed to disclose that the HR Panel Product was not, in fact, subjected to a wall and ceiling test as required by AS 5637.1). That contention cannot be accepted. The misleading character of the representations made by Pirmax cannot be ameliorated by the fact that the class of persons to whom they were directed could have regard to other materials made available by Pirmax, which in turn might correct the impression otherwise created. 312 Finally, I do not accept Pirmax's submission that the considerable number of references to AS 5637.1 littered throughout the many and varied representations made by Pirmax in relation to the HR Panel Product were so obviously erroneous that the class of persons to whom those representations were made would have been disabused of the impression that the HR Panel Product had been tested in accordance with AS 5637.1. The obviousness of that error was said to arise by reason of the fact that some of Pirmax's marketing and advertising materials referred to the HR Panel Product being tested to AS 5637.1, while Pirmax made references elsewhere to having performed a ceiling-only test. I do not consider that an ordinary and reasonable member of the class of persons to whom those representations were made would have been alive to that contradiction, let alone that he or she would have resolved it in Pirmax's favour by concluding that it was the product of an error so obvious that it was not "operative or material", and therefore ought to be ignored. 7.4.3.3 Further observations on the evidence 313 It is prudent to make some further observations. 314 Although Mr Lewinsohn was at pains to convey that Pirmax relied wholly on the expertise of others when it came to matters of compliance, there was evidence that suggested that he and others at Pirmax had at least some awareness of the relevant provisions of the NCC, and the changes to the testing requirements for fire hazard properties between NCC 2015 and NCC 2016. 315 Ms Rachel Menadue, Pirmax's "Sales Director" (who regularly used the email address "pirmax@bigpond.com"), was, it seems, the Pirmax officer responsible for organising the testing of the HR Panel Product. On 19 February 2016, she received an email from Mr McCallum with the subject line "iso 9705". In that email, Mr McCallum explained that, while the CSIRO was "happy to provide a ceiling-only test" (presumably on the HR Panel Product), it would "not be able to conclude a group number". He then stated (errors original): Now what Kingspan did was have the test done at CSIRO the same as we are planning… Then they went to SAI Global an got them to issue a codemark certificate. It is basically the same path that CSR used, but in there case they took the Xtratherm test report from Sweden and had Grubits prepare a document to demonstrate compliance to the BCA. I suggest we go the codemark route as they have already done this for Kingspan using CSIRO data, so there is a precedent. It also means Kingspan can't question your certificate. … 316 In an email to Mr Jim Richardson of Exova sent on 15 March 2016, Ms Menadue expressed some eagerness to arrange a ceiling-only test, and to do so "quickly". Her email demonstrated an understanding of the distinction between "ceiling-only" and "ceiling-and-wall" tests and the changes that were set to apply with the introduction of NCC 2016. Her email read, in part (errors original): … We would like to test for Ceiling only for now. I know that its a part test and you wont issue a group number only a report of the results. We will then take to Code Mark to issue a certificate for a Group Rating according to your report. We would also like to do a full room ceiling and wall once we see what result we get for the ceiling. I have attached a copy of the changes to the BCA re above standards. I'm hoping that we can be the first to test with reference to AS5637. How quickly could we book in for the test? … 317 On 6 April 2016, Mr McCallum sent an email to Mr Lewinsohn (to which Ms Menadue was copied) with the subject line "Fire tests". In that email, Mr McCallum provided a YouTube link that apparently showed a number of full-room tests being performed on insulation products. The email read, in part (errors original): Hi Jeffrey Attached is a link to my onedrive account with some relevant files for you. In this are the Xtratherm and Kingspan ISO 9705 test report and photos of the Dow (DC Tech) from the US… You will note that these were all Ceiling only… I haven't uploaded our PIR only (no foil) test, but can do this from home tonight if you want. However this is a link I had which shows a number of tests being done and it was very similar in result to our full room test. If you look at the foil faced test at about 5:50 into the clip you will see how the smoke accumulates in the ceiling space and then ignites casing flash over. This did not occur in any of the ceiling only tests… 318 It is not clear to what test Mr McCallum is referring by "our full room test". It doesn't much matter, but his remarks that flashover occurred in the full-room tests and not the ceiling-only tests nonetheless conveyed to Mr Lewinsohn and Ms Menadue the clear advantage of relying on the results of a ceiling-only test for the purposes of determining the HR Panel Product's group number. 319 The following exchange occurred during Mr McCallum's cross-examination: And were you providing advice to Pirmax about the BCA compliance requirements for their products?---We had discussed it but I wasn't giving advice because that's not my – I'm not qualified to give that advice. Had you – who were you having those – not advice but discussions – who were you having those discussions with from Pirmax?---With Rachel and Jeffrey. And did you have discussions – did – were you aware that on 1 May, there would no longer be an ability to have a ceiling-only configuration in order to demonstrate compliance and achieve a group number?---Yes. And did you tell that to Mr Lewinsohn and Ms Menadue?---I didn't have to. They knew that already. 320 Pressed by the court to identify how it was that he came to understand that state of awareness on the part of Mr Lewinsohn and Ms Menadue, Mr McCallum's evidence was that they had discussed the issue with him. 321 Mr Lewinsohn gave evidence in cross-examination that he ensured that Ms Menadue kept him informed about the testing that the HR Panel Product was required to undergo in order to achieve compliance with the NCC, and that arranging the testing of the HR Panel Product was both his and Ms Menadue's responsibility. Nonetheless, during cross-examination he repeatedly gave evidence that he understood at the time that Pirmax needed to arrange a ceiling-only test before the end of April 2016; but that he did not know why. His evidence included the following exchanges with senior counsel for Kingspan: …Now, as you dealt with the CSIRO in early 2016, did you become aware that a new Building Code of 2016 was due to be introduced?---I knew that we had to do our test before the end of April 2016. I knew our test had to be done before the end of April 2016. And you knew that was because from May 2016 it would require a different kind of test?---Correct. You knew at the time, didn't you, that the different kind of test was going to be the full room rather than the ability to do ceiling-only?---I knew that we had to do a ceiling-only test. That's all I knew. I didn't know a full room and I knew we had to do it before 30 April. I may have misheard you; did you say you knew you had to do a ceiling-only test?---Yes, because that's what they advised us to do, a ceiling-only test before 30 April. Who advised you to do a ceiling-only test?---Nathan White from the CSIRO; he was commissioned to do the test. And do you recall the reasons he gave for his advice, if any?---I didn't ask for reasons. I knew that's what we had to do, and that's what we had to do – the reason. … …So in all events, should his Honour understand your evidence that you appreciated in early 2016 that Pirmax should obtain a ceiling-only test in relation to the HR Panel product for the purpose of seeking to obtain a group classification?---Yes. And you understood at the time didn't you that a ceiling-only test would perform better, be more likely to achieve a higher group number, than if a full-room test were done of the product?---I never even thought of a full-room test. It didn't even enter my mind I was going to do a full-room test. I was told I had to do a ceiling-only test and that's what we did. … And you knew you had to do the ceiling-only test before the end of April?---Yes. That's what I knew. Because you knew after April would require a different test?---No. I didn't knew that. I only knew that we had to do the ceiling-only before the end of April. What did you think was going to happen on 1 May if - - -?---I didn't find out. I didn't want to. I knew that we had to do it – from January I knew that we had to do a ceiling-only test, and that's what I wanted to do. 322 Mr Lewinsohn also gave evidence that he had conversations with Mr McCallum in connection with developing the HR Panel Product, including receiving assistance about matters of compliance under the NCC—although he stated that he could not recall any specific advice that Mr McCallum gave him. 7.4.4 Alleged misleading representations made by Pirmax—ISO3 Product 323 There was no dispute that the testing performed by Exova on the ISO3 Product on 5 March 2019 (the results of which were conveyed in the Pirmax Exova ISO3 Report) accorded with the requirements of AS 5637.1 and supported a group 3 classification. Kingspan's complaint, rather, was that Pirmax made representations to the effect that the ISO3 Product had a group 3 rating without differentiation as to its colour finish—that is, that Pirmax represented that its ISO3 Product achieved that rating in all colour finishes, when the Pirmax Exova ISO3 Report only supported that claim in respect of the ISO3 Product in an unpainted aluminium foil facing or silver finish. As the Kingspan Exova ISO3 Report showed that the product tested (in a white and silver finish) achieved a group 4 classification, and as Pirmax could not produce test reports showing that the white or black variants achieved a group 3 classification, Kingspan alleged that Pirmax's representations to the effect that the ISO3 Product in all colour finishes had a group 3 rating were false or misleading. 324 It is convenient to replicate the relevant parts of Kingspan's further amended concise statement of cross-claim: 11. Since on or around 1 May 2019, Pirmax has supplied the ISO3 Panel Products, including the Pirmax 40mm ISO3 Panel White product (the White 40mm ISO3 Product) in Australia. 12. Further, since on or around 1 May 2019, Pirmax has published advertising and promotional material in relation to the ISO3 Panel Products (ISO3 Panel Advertising Material), including: (a) technical data sheets and brochures (ISO3 Technical Data Sheets); (b) promotional material on the Pirmax website (ISO3 website material); and (c) test reports available on request from the Pirmax website (ISO3 Test Reports). 13. Further, since on or around 1 May 2019: (a) Pirmax has provided and made available the ISO3 Panel Advertising Material to customers, distributors and suppliers of the ISO3 Panel Product; and (b) to Pirmax's knowledge, Pirmax distributors have used and re-published the ISO3 Panel Advertising Material in promoting the supply of the ISO3 Panel Product. 14. From on or around 1 May 2019, Pirmax, through the ISO3 Panel Advertising Material, represented (and has continued to represent) that (ISO3 Panel Representations): (a) all the ISO3 Panel Products achieve a Group 3 classification under the BCA 2019; (b) all the ISO3 Panel Products achieve a Group 3 classification when tested in accordance with the Australian Standard AS 5637.1 compliant to the BCA 2019, specification C1.10; and (c) all the ISO3 Panel Products achieve a Group 3 classification when tested in accordance with the Australian Standard AS ISO 9705:2003 compliant to the BCA 2019, Specification C1.10. 15. Further, by the conduct alleged in paragraph 13 above, from on or around 1 May 2019, Pirmax authorised and was aware that Pirmax distributors also made (and are continuing to make) the ISO3 Panel Representations. 16. The ISO3 Panel Representations have caused (and will or are likely to cause) ISO3 Panel Products to be procured and installed in building projects for which the specifications provided for ceiling or soffit lining insulation with Group 3 rating. 17. The ISO3 Panel Representations are, and continue to be, false or misleading because, since on or around 1 May 2019: (a) not all of the ISO3 Panel Products including the White 40mm ISO3 Product achieve a Group 3 classification under the NCC/BCA 2019; (b) not all of the ISO3 Panel Products including the White 40mm ISO3 Product achieve a Group 3 classification when tested in accordance with AS 5637; and (c) Pirmax does not have a test report in respect of the white or black facing ISO3 Panel Products conducted in accordance with AS 5637 which concludes that all of the ISO3 Panel Products achieve a Group 3 classification. 325 Kingspan relies upon Dr Barnett's evidence, as expressed in the Barnett ISO3 Report, that materials manufactured in a different colour should be separately tested as the different colour could lead to a variation in fire performance, and could affect the time to flashover under testing compliant with AS 5637.1. It submits that each coloured variant "is a distinct internal lining subject to" the requirement that it comply with the NCC. As Pirmax had not separately tested the ISO3 Product in different colour finishes, Kingspan submits that Pirmax did not possess an adequate scientific or factual foundation to make representations to the effect that all colour variations of the ISO3 Product achieved a group 3 classification. By doing so, it is said to have engaged in misleading or deceptive conduct. 7.4.5 Pirmax defence—ISO3 Product 326 Pirmax's pleaded defence with respect to the ISO3 Product follows a similar pattern to its defence to Kingspan's claims about the HR Panel Product. It either denies or did not admit most of the allegations, and instead set out the statements it had made in annexures to its concise statement in response to Kingspan's further amended cross-claim. It is convenient to replicate the relevant paragraphs of that defence: 11. Pirmax admits the allegations in paragraph 11 and refers to and repeats paragraph 2 herein and paragraph 1 of its Amended Concise Statement dated 29 July 2019 in this proceeding. 12. As to paragraph 12, subject to the identification and production of the exact references in the Pirmax Advertising Material which, it is alleged, constitute the ISO3 Panel Representations, Pirmax says: (a) since around 1 May 2019, it has made the statements relating to Pirmax's ISO3 Panel Products or certain of them identified in Annexure C hereto (Statements Relating to ISO3); (b) since around 1 May 2019, it has relied on and made available test and other reports relating to the ISO3 Panel Products identified in Annexure D hereto (ISO3 Reports); (c) the Statements Relating to ISO3 and the ISO3 Reports concern matters of technical complexity and expert opinion in determining the relevant requirements of the NCC/BCA, and referenced Standards, in respect of the classification requirements, the test methods and procedures specified by the classification requirements and the assessment of test results for the purposes of the classification requirements; (d) the ISO3 Reports self-evidently comprise the technical expertise and opinions of their respective specialist authors; (e) save for the statements noted below, the Statements Relating to ISO3 self-evidently comprise the technical expertise and opinions of their respective specialist authors; (f) the Statements Relating to ISO3 in item 2, reported the result of the technical expertise and opinions of the respective specialist authors of the ISO3 Reports; (g) to the extent that any of the Statements Relating to ISO3 and the ISO3 Reports were reasonably acted on by Pirmax distributors and/or customers of Pirmax distributors, and certain direct accounts in the Market, it would be understood that such matters involved the technical expertise and opinions of specialists not Pirmax, that the classification of the ISO3 Panel Products had been determined in accordance with the technical expertise and opinions of such specialists, and that Pirmax was not qualified to, and did not purport to, verify the same; (h) it otherwise does not admit the allegations. 13. As to paragraph 13, subject to the identification and production of the exact references in the ISO3 Panel Advertising material which, it is alleged, constitute the ISO3 Panel Representations, Pirmax says: (a) the Statements Relating to ISO3 in Annexure C were made to Pirmax customers, distributors and direct accounts as set out in that Annexure C; (b) the ISO3 Reports identified in Annexure D were made available to Pirmax customers, distributors and direct accounts as set out in Annexure C; and (c) it otherwise does not admit the allegations. 14. Pirmax denies the allegations in paragraph 14 and refers to and repeats paragraphs 12 and 13 above. 15. Pirmax denies the allegations in paragraph 15 and refers to and repeats paragraphs 13 and 14 above. 16. Pirmax denies the allegations in paragraph 16 and refers to and repeats paragraphs 12 and 13 above. 17. Pirmax denies the allegations in paragraph 17 and, without limiting the generality of the foregoing denial, it: (a) refers to and repeats paragraphs 12 and 13 above; (b) says further that it relied and relies upon the ISO3 Reports identified in Annexure D; (c) says further that the ISO3 Panel Products achieved a Group 3 classification as provided for in the ISO3 Reports identified in Annexure D pursuant to the applicable provisions of the BCA; (d) says further that none of the alleged ISO3 Panel Representations was or is false or misleading in circumstances where: (i) Pirmax's distributors and direct accounts; (ii) architects, registered building surveyors, building certifiers, fire engineers builders and/or other participants in the building industry, when considering use of ISO3 Panel Products or any one of them in any particular application in accordance with their obligations, were provided with or had available to them copies of the ISO3 Reports in Annexure D, which constituted expressions of opinion of appropriately qualified experts. 327 As it did in respect of the HR Panel Product, Pirmax submits that the statements that it made concerning the ISO3 Product were supported by the various reports produced in relation thereto; and that, accordingly, "[it could not] be said there was not an adequate scientific foundation or factual basis to make the statements that it did, in the context in which they were made, and to whom they were directed". 328 In its written closing submissions Pirmax asserts as follows: …it was clear and obvious that Pirmax's statements were made with reference to, and were supported and qualified by, the ISO3 Reports. Self-evidently, those statements and reports concern matters of technical complexity and expert opinion, and it would be understood by recipients that those matters of classifications were made by those specialists and experts, not Pirmax, and that Pirmax was not qualified to, and did not purport to, verify them… 329 Similarly, Pirmax submits that: …none of Pirmax's Statements Relating to ISO3 was false or misleading or deceptive, or likely to mislead or deceive, in the context in which they were made and in fact. As has been outlined, Pirmax's distributors and direct accounts, and architects, registered building surveyors, building certifiers, fire engineers, builders and/or other participants in the building industry, when considering use of any particular Pirmax ISO3 product, whether unpainted or painted (in any particular colour), in any particular application were obliged, in accordance with their obligations, to ensure that the product satisfied the regulations and requirements relating to its use. In doing so, those building industry professionals were provided or had available to them copies of the ISO3 Reports that had been prepared by appropriately qualified experts… 330 As to the colour variation issue, Pirmax submits that it was not controversial that variation in colour of a painted specimen is a factor affecting the applicability of group number determinations. However, its reliance on testing of the ISO3 Product in silver finish only rested on the proposition that C1.10(c)(viii) of the NCC "provides an exemption to the effect that paint is not required to be included in the determination of a group number". Ultimately, Pirmax says, the issue depends upon the proper construction of that provision. 331 Pirmax also disputes the reliability of the test results relied upon by Kingspan (that is, the results of testing performed by Exova on 28 October 2019, which results were conveyed in the Kingspan Exova ISO3 Report). It submits that there were various aspects of that testing (and the Kingspan Exova ISO3 Report produced in respect of it) that did not accord with AS ISO 9705—including, for instance, that a tape used in the test room was not the same tape that was specified in Pirmax's ISO3 installation guide. 7.4.6 Consideration 7.4.6.1 Did Pirmax make the representations alleged? 332 Kingspan alleges that, by publishing advertising and marketing materials in respect of the ISO3 Product (and by its distributors doing so with Pirmax's knowledge), Pirmax made the following three species of representations (as extracted above at [323]): (a) "all the ISO3 Panel Products achieve a Group 3 classification under the BCA 2019"; (b) "all the ISO3 Panel Products achieve a Group 3 classification when tested in accordance with the Australian Standard AS 5637.1 compliant to the BCA 2019, Specification C1.10"; and (c) "all the ISO3 Panel Products achieve a Group 3 classification when tested in accordance with the Australian Standard AS ISO 9705:2003 compliant to the BCA 2019, Specification C1.10". 333 I consider that Pirmax relevantly made each of the above representations. The technical data sheets that Pirmax produced and disseminated conveyed that the ISO3 Product achieved a group 3 classification when tested to AS ISO 9705:2003 and AS 5637.1 (and, therefore, NCC 2019, being the NCC then in force). As much is clear from the following statement contained in one of the technical data sheets in evidence (which was not qualified in any way): Achieves a Group 3 BCA/NCC fire classification when tested to Wall and ceiling lining tested in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015. 334 Similarly, a table including the following statement regarding the ISO3 Product was published on Pirmax's website: ISO3 PANEL PRODUCT TESTING Complies to AS/NZ 4589.1 and NCC/BCA Complaint Facing Foil (Silver) Wall and Ceiling Lining tested in accordance with AS ISO 9705:2003 (R2016) and AS 5637.1:2015 System tested to installation method using Hilti X-IE 6 fasteners and PIRMAXISO3 embossed foil tape Group 3 335 Two observations bear noting. First, although the statements made in the technical data sheets and on Pirmax's website did not refer to specification C1.10, there were other materials in evidence in which compliance with that provision was mentioned (an example of which is extracted at [336] below). The fact that that specification was not mentioned in all of the representations that Pirmax made in respect of the ISO3 Product doesn't mean that Pirmax didn't make it. The same observation is true of the alleged representations that the ISO3 Product complied with NCC 2019, as opposed to the NCC in force. The representation that the ISO3 Product complied with NCC 2019 was quite clearly made in some of Pirmax's materials. For example, the Ignis publication entitled "product advice" in respect of the ISO3 Product issued on 11 December 2019 made statements to the effect that the results showing a group 3 classification "are applicable and compliant to the BCA Deemed to Satisfy requirements under the National Construction Code – Volume 1 – Building Code of Australia – 2019". But, in any event, all of the technical and marketing materials in evidence in respect of the ISO3 Product were published during the currency of the NCC 2019. Those materials included statements to the effect that the ISO3 Product complied with the NCC (at least by reason of its attainment of a group number better than 4). It is a short step to conclude that those statements denoted compliance with the NCC in currency, being NCC 2019, rather than some previous iteration of that code. 336 I also consider that, by making the various reports prepared in respect of the ISO3 Product available to purchasers (and potential purchasers) of the ISO3 Product (including via its distributors), Pirmax adopted or endorsed the statements contained within each of them and, accordingly, should be considered to have "made" those statements. The observations made at [300] above in respect of the HR Panel Product apply with equal force to the ISO3 Product. 337 As to the content of the various reports produced in respect of the ISO3 Product, they were (with the exception of the reports produced by AWTA) based on the conclusions expressed in the Pirmax Exova ISO3 Report, and included representations to the same effect (see above, [169]). Those representations conveyed the meaning attributed to them by Kingspan—that is, that the ISO3 Product achieved a group 3 classification under the NCC, AS 5637.1, and AS ISO 9705:2003. For example, the Ignis publication entitled "product advice" and issued on 11 December 2019 contained the following statements on the same page (which plainly conveyed the representations alleged): BCA Clause C1.10 as well as BCA Specification C1.10 sets the requirements of a ceiling soffit lining to be evaluated in accordance with AS 5637 and achieve a required Group number for the respective location. … The PIRMAX ISO3 Insulation Panel with silver finish has been tested by Exova Warrington in accordance with AS ISO 9705 in a soffit insulation with the following results demonstrating a Group 3 classification. Internal Ceiling soffit lining – Silver / White / Black finish BCA Clause Test Report Clause C1.10, Specification C1.10 Clause 4 RFT 190047 R1.0 05.03.2019 AS ISO 9705-2003 Full Scale Room Test Group Number 3 SMOGRARC 133.8 m2s-2 x 1000 338 Indeed, while most statements that Pirmax made in respect of the ISO3 Product were expressed generally (in that they simply conveyed that the ISO3 Product achieved a group 3 rating without qualification), others went further, and expressly stated that the colour finish in which the ISO3 Product appeared would not affect the group 3 classification that it achieved. 7.4.6.2 Were the representations false, misleading or deceptive? 339 As already recorded, Pirmax accepts that variation in the colour of a specimen is a factor affecting the applicability of group number determinations. Indeed, although nothing turns on this, Pirmax had separately tested each colour variation in the HR Panel Product: it made statements to the effect that the HR Panel Product in black finish achieved a group 3 rating (in at least some of its materials) while simultaneously stating that the HR Panel Product achieved a group 1 rating in white finish. However, in order to justify its reliance on testing of the ISO3 Product in silver finish only, it pointed to what it described as an exception contained in C1.10(c)(viii) of NCC 2019. That provision read, relevantly: (a) The fire hazard properties of the following linings, materials and assemblies in a Class 2 to 9 building must comply with Specification C1.10: … (ii) Wall linings and ceiling linings. … … (c) The requirements of (a) do not apply to a material or assembly if it is— … (viii) a paint, varnish, lacquer or similar finish, other than nitro-cellulose lacquer… 340 I do not accept that that provision has the effect for which Pirmax contends—that is, I do not accept that C1.10(c)(viii) provides an exception to the effect that paint was irrelevant when determining the group number for the ISO3 Product. The provision operates such that a paint, varnish, lacquer or similar finish does not itself, as a stand-alone product, require a group number. 341 That conclusion emerges from a straightforward application of ordinary principles of statutory construction. Paints, varnishes, lacquers and similar finishes are all "materials". They are not "linings" or "assemblies". The ISO3 Product is a lining. It is no less such merely because it is partly comprised of paint. 342 In any event, the unchallenged expert evidence of both parties obliges the same conclusion. Dr Barnett and Dr Enright each gave evidence that variants in colour facing may lead to a variation in the fire performance of a lining system (in Dr Barnett's case, a considerable variation capable of determining the applicability of a group number determination). Mr Leonard agreed with that proposition. For that reason, Dr Barnett gave evidence that materials manufactured in different colours should be separately tested. Dr Enright agreed. It would be entirely at odds with that evidence if the NCC, through C1.10(c)(viii), then provided an exception to colour variation, especially as appendix C to AS 5637.1 states that colour is a factor that should be considered when testing a material or system. 343 I accept Mr Leonard's evidence that C1.10(c)(viii) of NCC 2019 contemplated "after production and site delivery application of paint, varnish, lacquer or similar finish". That is, it provides an exception for circumstances in which a product (like the ISO3 Product) is installed in a particular application, and then painted following its installation. It would be unnecessary in that situation to test the product as painted (that is, subsequent to its manufacture and installation). That can be distinguished from circumstances in which a product is manufactured in several different colours. 344 Although Dr Enright stated that C1.10(c) provided an exemption to the effect that the coloured facing applied in manufacture is not required to be included for the purposes of determining group number, he conceded that the construction of the NCC "was outside [his] area of expertise". It is, in any event, incorrect (and, as Dr Enright stated in his report, contradicts the rationale implicit in appendix C to AS 5637.1). 345 It follows that each coloured variant of the ISO3 Product was required to comply with the requirements of the NCC; and, accordingly, that each variant was required to be subjected to testing according to AS 5637.1. As Pirmax had only subjected the ISO3 Product in silver finish to the requisite testing, it did not have a sufficient basis to represent that the ISO3 Product in all finishes achieved a group 3 rating or classification. That being so, the representations made by Pirmax to the effect that all ISO3 Products achieved a group 3 classification under the NCC 2019 (whether tested in accordance with AS 5637.1 or AS ISO 9705:2003, or whether compliant with specification C1.10) were wrong. I consider that they were therefore relevantly false, misleading, or deceptive. That conclusion is buttressed by, but does not depend upon acceptance of, the results of the testing of the ISO3 Product in white finish performed by Exova on 28 October 2019, the results of which were conveyed in the Kingspan Exova ISO3 Report (namely that it achieved a group 4 classification). 7.4.7 Conclusion on Kingspan's ACL claims 346 Kingspan has established that Pirmax made representations in relation to the HR Panel Product to the effect that: (a) all the HR Panel Products achieved a group 1 classification when tested in accordance with AS 5637.1; (b) all the HR Panel Products achieved a group 1 classification under the NCC/BCA in force; and (c) the HR Panel Products complied, alternatively had been evaluated and considered to comply, with the deemed-to-satisfy requirements of the NCC in force for use in internal ceilings as an exposed or concealed soffit lining. 347 In making those representations, Pirmax engaged in conduct that: was misleading or deceptive in contravention of s 18 of the ACL; was false or misleading in contravention of s 29(1)(a) and (g) of the ACL; and amounted to misleading conduct that contravened s 33 of the ACL. 348 Kingspan has also established that Pirmax made representations in relation to the ISO3 Product to the effect that: (a) all the ISO3 Products achieved a group 3 classification under NCC 2019; (b) all the ISO3 Products achieved a group 3 classification when tested in accordance with the Australian Standard AS 5637.1 (and are, therefore, compliant with NCC 2019, and Specification C1.10 thereof); and (c) all the ISO3 Products achieve a group 3 classification when tested in accordance with the Australian Standard AS ISO 9705:2003 (and are, therefore, compliant with NCC 2019, and Specification C1.10 thereof). 349 In making those representations, Pirmax engaged in conduct that was: misleading or deceptive in contravention of s 18 of the ACL; false or misleading in contravention of s 29(1)(a) and (g) of the ACL; and misleading in contravention of s 33 of the ACL. Part 8: Pirmax's injurious falsehood claim 8.1 Summary 350 Further and in the alternative to its claims brought under the ACL, Pirmax alleges that Kingspan, by its various representations, committed the tort of injurious falsehood. It alleges that the representations that are the subject of its claims under the ACL—that is, those set out at [192]-[194]—were false, were made maliciously, and had the effect of causing damage to Pirmax's business. 8.2 Principles to be applied 351 The elements of the tort are well established. They were restated by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 404 [52] as follows (citations omitted): The elements of the action for injurious falsehood usually are expressed in terms which derive from Bowen LJ's judgment in Ratcliffe v Evans, to which further reference will be made. Thus, generally, it is said that an action for injurious falsehood has four elements: (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement. 352 In a recent decision of this court, National Roads and Motorists' Association Ltd v Construction, Forestry, Mining and Energy Union (2019) 291 IR 28, Griffiths J provided a summary of the third and fourth elements of the tort, which I gratefully adopt. As to malice, his Honour made the following observations (at 76-77 [191]-[195]): Malice is an essential element of the tort. As Weinberg J observed in Orion at [200], malice "is never easy to define in the law of tort". His Honour referred approvingly at [202] to a passage at paragraphs [145–835]–[145–845] in volume 10 of Halsbury's Laws of Australia where it is stated that malice may not be inferred from the fact of publication, but will be inferred where a false publication was made with an intent to injure without just cause and with knowledge of the falsity or reckless indifference as to its truth or falsity (see also Roberts v Bass [2002] HCA 57; 212 CLR 1 at [91] per Gaudron, McHugh and Gummow JJ and the authorities referred to therein). Significantly, however, it is insufficient to show that the false publication was made with a mere lack of care or with an honest belief in its truth. Malice is often understood to involve an intent to injure another without just cause or excuse or by some indirect, dishonest or improper motive. Malice involves that the statement was made mala fide or with a lack of good faith. A person who acts in good faith is not liable. In Fairfax Media, Brereton J gave the following explanation at [31], with which I respectfully agree: Again unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff. While the notion of "malice" in the context of this tort is not easy to define [Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 291 (Pincus J)], it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person [British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260 269; Browne v Dunn (1893) 6 R 67, 72; Dickson v Earl of Wilton (1859) 1 F&F 419, 427 (1859) 175 ER 790; Stuart v Bell [1891] 2 QB 341, 351 Shapiro v La Morta [1923] All ER Rep 378; Schindler Lifts Australia Pty Ltd v Debelak, 291]. The English Court of Appeal has said that the criteria for malice in injurious falsehood are the same as at common law for libel and slander [Spring v Guardian Assurance PLC [1993] 2 All ER 273, 288; reversed on other grounds Spring v Guardian Assurance PLC [1995] 2 AC 296]. Its content has been variously described as "an intent to injure another without just cause or excuse" or "some indirect, dishonest or improper motive" [J Fleming, The Law of Torts, 9th ed (1998) LBC Information Services at 780; Palmer Bruyn, 423 [108] (Kirby J)], or "a purpose or motive that is foreign to the occasion and actuates the making of the statement" [cf Roberts v Bass (2002) 212 CLR 1 , 30, [2002] HCA 57 [75] (Gaudron, McHugh & Gummow JJ)]. It involves that the statement was made mala fide or with a lack of good faith. In this context, while a person who acts in good faith is not liable [Joyce v Sengupta [1993] 1 All ER 897], malice may exist without an actual intention to injure [Wilts United Dairies Ltd v Thomas Robinson Sons & Co Ltd [1957] RPC 220; Wilts United Dairies v Thomas Robinson [1958] RPC 94]. Whilst malice will typically be inferred from affirmative knowledge of falsity and, perhaps, from reckless indifference as to the truth, a mere lack of affirmative belief in truth is insufficient of itself to establish malice (Roberts v Bass at [15], [39]–45] per Gleeson CJ, [76]–[104] per Gaudron, McHugh and Gummow JJ). In Orion, Weinberg J said at [222] that the relevant threshold of malice was not met in the circumstances there: [I]t is my view that Mr Apostolides genuinely believed that all of the factual allegations which he made about the collars were true. He believed that dogs had been burned as a result of their use. He also believed that they inflicted a 3,000 volt shock. These were damaging statements to make about Innotek's products. However, though false, they were not made maliciously. In establishing malice, recklessness does not simply mean carelessness, even in a high degree. It means "indifference to its truth or falsity." Negligence or carelessness is insufficient to establish malice and thereby give rise to liability for injurious falsehood. Even a lack of affirmative belief in truth will not, of itself, establish malice. 353 Later in the judgment, as to actual damage, his Honour provided the following recitation of the relevant principles (at 80 [209]-[211]): An applicant alleging the tort of injurious falsehood must prove that it has suffered particular and identifiable loss or damage as an essential element of the tort. The actual damage done is the very gist of the action. The requirement has been variously stated as requiring the plaintiff to establish "special damage", "particular and identifiable loss or damage" and "actual damage" (Ratcliffe v Evans at 527–528 per Bowen LJ; Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission [1998] FCA 1560; (1999) ATPR 41–669 at 42–537 per Lindgren J). The tort of injurious falsehood does not provide a cause of action for mere injury to either reputation or feelings. A party seeking to establish injurious falsehood must plead and prove actual, that is, identifiable financial loss or damage, as an essential element of the tort. For example, in Orion, Weinberg J said at [198]: In some respects, this tort bears a marked resemblance to defamation. Both involve a false and harmful imputation concerning the plaintiff which is made to a third party. They differ, however, in that the law of defamation protects interests in personal reputation while injurious falsehood protects interests in the disposability of a person's property, products or business. Defamation is generally actionable without proof of damage. Falsehood is presumed and liability is strict. In an action for injurious falsehood, the plaintiff must prove that he sustained actual economic loss, that the offending statement was false, and that it was made with intent to cause injury without lawful justification. The requisite state of mind is often described as malice. Similarly, in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, Hunt CJ at CL said at 408: The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation (Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694) or feelings (Fielding v Variety Inc [1967] 2 QB 841 at 850), damages for injurious falsehood would appear to be restricted to the recovery of that actual damage: ibid at 850. 8.3 Alleged injurious falsehoods 354 Pirmax relies upon the same statements or representations that Kingspan made in respect of the HR Panel Product for both its claims under the ACL and its claims in injurious falsehood. For the reasons identified at [196] to [213], Pirmax submits that those statements were false. 355 As to the second element of the tort, Pirmax submits that there was ample evidence showing that Kingspan published correspondence in the form of the Project Shield and Sword Emails, the Kingspan Exova Report, the Barnett Report and the Narrated Video to several market participants, including regulatory authorities. 356 As to the third element, Pirmax submits that the following matters suffice to establish that Kingspan's conduct was attended by malice, namely: (1) Kingspan's overall strategy, from early-2016, to "disparage" Pirmax's HR Panel Product by representing that it did not comply with the relevant NCC standards; (2) Kingspan communications to the market from around May 2019, including the Project Shield and Sword Emails, Kingspan Exova Report, the Barnett Report and the Narrated Video; (3) the fact that Kingspan's intention (through Mr Gibson and Mr Anderson) was to regain market share lost to Pirmax; (4) that Kingspan (again through Mr Gibson and Mr Anderson) knew that its representations were false or were recklessly indifferent as to their truth; (5) that Mr Gibson, Mr Anderson and Dr Barnett knew, or ought to have known, that Pirmax's claims about its HR Panel Product having a group 1 classification were expressly qualified in Pirmax's materials and in the reports of the experts on which it relied (in that Pirmax relied on a ceiling-only test and the Transitional Provision). On that score, Pirmax points to Kingspan's reliance upon the Transitional Provision as permitting use of a ceiling-only test for one of its own Kooltherm products; (6) that Kingspan made its representations in circumstances when it knew, or ought to have known, that the technical data sheets for the HR Panel Product stated that it was compliant with the applicable Australian standard to achieve a group 1 rating for ceiling and/or soffit use and, further or alternatively, that the relevant testing was conducted according to conditions prescribed by AS ISO 9705-2003 for ceiling and/or soffit application only; (7) that Kingspan made and repeated its representations in circumstances when it knew, or ought to have known, that potential purchasers of the HR Panel Product were provided with or had available to them copies of reports commissioned by Pirmax (being the Pirmax Exova Report, the Acronem Report, and the Ignis Report); and (8) that Kingspan engaged the respective authors to produce the Kingspan Exova Report and the Barnett Report, produced the Narrated Video, and published them to market participants to further its "strategy"—in the knowledge that the wall-and-ceiling test conditions were not the applicable use for which the Product was designed or promoted by Pirmax, given that the HR Panel Product was classified as group 1 for soffit/ceiling-only and that Pirmax relied on the Transition Provision. 357 As to the proof of actual damage that it had suffered, Pirmax submits that Kingspan's conduct led to Pirmax losing customers and projects (which also led to a related loss of "growth in sales"). Pirmax also submits that Kingspan's conduct served to deprive it of an opportunity to sell its business to Huntsman, which constituted damage in the relevant sense. 8.4 Kingspan's defence 358 Kingspan submits that, to the extent that it did make any of the representations alleged by Pirmax, those representations were factually correct (for the reasons set out at [218]-[226] above). 359 Kingspan submits that there is no basis to suggest that it engaged in conduct with malice or any intent to cause illegitimate harm to Pirmax's business. It submits that the evidence established that Kingspan "had a legitimate purpose of seeking a level playing field by urging stakeholders to seek accurate information from Pirmax", and that Kingspan's conduct in disseminating the Project Shield and Sword Emails "was careful, considered and otherwise a step which came only after unsuccessful efforts to engage with Pirmax". To that end, Kingspan contends that the Project Shield and Sword Document included instructions to Kingspan staff to control the manner in which the relevant information was disseminated (including strict adherence to the scripted emails, which—it submitted—were entirely factual) and to ensure that Kingspan did not contravene any of its statutory obligations. It also provided for a gradual escalation process, culminating in litigation only if previous efforts to engage with Pirmax had been unsuccessful. 360 Kingspan submits that, prior to February 2019, it had spent several years "carefully examining and incurring costs of testing Pirmax's product performance claims" in a "methodical and sophisticated" way. It submits that there is nothing improper about a business seeking to verify a competitor's performance claims in that manner—nor is there anything improper in taking steps to ensure customers are made aware of that testing. 361 As to the fourth element of the tort, Kingspan submits that Pirmax had failed to prove that it had suffered any actual damage. 8.5 Consideration 362 Much of the analysis concerning Pirmax's claims under the ACL is applicable also to its tortious claims. Each species of claim arises out of the same statements that Kingspan made; and Pirmax alleges that those statements were false in the same way for the purposes of each. That being so, the analysis that follows can be mercifully brief. 363 Pirmax's tortious claim falls at the first hurdle. For the reasons already explored, the statements that it claims were false were, in fact, not false. That reality is fatal to the cause of action in tort. 364 As to the second element of the tort, for the reasons set out above (at [227]-[235]), I accept that the impugned statements were made by Kingspan. There can be no doubt that Kingspan published the relevant statements to third persons, including market participants and regulatory authorities. 365 None of them, though, was made maliciously. On the contrary, the evidence establishes that Kingspan's concerns about the HR Panel Product were genuinely held, that it sought to verify those concerns through a series of tests on the HR Panel Product (conducted internally at Kingspan and by independent testing bodies, including the CSIRO, AWTA, and Exova), and that it repeatedly sought to engage with Pirmax about the results of that testing over an extended period, including via its solicitors. 366 Kingspan's attempts to engage with Pirmax went largely ignored. Mr Lewinsohn gave evidence that he was "not answerable to Kingspan" and that Kingspan "[didn't] deserve an explanation" regarding its concerns about the HR Panel Product. Further, in response to letters sent by Kingspan's solicitors, Pirmax's then solicitors gave what could fairly be described as bare denials, declined a proposal that the parties and their legal representatives meet on a without prejudice basis to discuss Kingspan's concerns about the HR Panel Product (and the Kingspan Exova Report and the Barnett Report), and invited Kingspan to raise those concerns with the relevant regulatory authorities. It was only at that stage, almost three years after Mr Gibson and Mr Anderson first became concerned about Pirmax's performance claims in respect of the HR Panel Product, that Project Shield and Sword was conceived (although, by that stage, Kingspan had been engaged in other forms of counter-marketing concerning the HR Panel Product for over two years). 367 The Project Shield and Sword Document set out in detail the manner in which Mr Gibson hoped that the strategy that he had devised would be executed. That document emphasised the need to "[r]emember our TPA training" and to "[p]lay the ball not the man". It also established a "Controlled Document Protocol" by which the Kingspan Exova Report and the Barnett Report were required to be sent with the text of the First Scripted Email, and were only to be distributed to a limited number of approved recipients. 368 Against that background, it is difficult to see how Kingspan's conduct might be said to have involved "an intent to injure [Pirmax] without just cause or excuse or by some indirect, dishonest or improper motive", or that it involved a lack of good faith. It is not to the point that Kingspan, through its counter-marketing conduct, intended to recover lost market share—that reality, and Kingspan's desire for a "level playing field" in the market for the supply of rigid foam insulation products, does not demonstrate the existence of malice. 369 Pirmax's submissions to the effect that Kingspan knew the statements and representations it made (through its employees) were false, or showed reckless indifference as to their truth, is entirely at odds with the evidence—and, moreover, is predicated on the assumption that Pirmax was permitted to market the HR Panel Product in a "qualified manner" (that is, to claim group 1 classification for ceiling or soffit applications only, in reliance on a ceiling-only test), which it was not. Even had Kingspan's statements been false, it is very plainly the case that they were made in the belief that they were true. 370 The fourth element of the tort was the subject of extensive evidence but it is not necessary to summarise it, nor make any findings about it. The tortious wrongdoing of which Pirmax claims to have been a victim simply did not occur. 371 It follows that Pirmax's action in tort must fail. Part 9: Relief 372 None of the causes of action that Pirmax here agitates is made out. There is, then, no occasion to consider any relief in connection with any of them. Subject to addressing the question of costs (to which I shall return momentarily), it will suffice to dismiss Pirmax's originating application of 17 May 2019. 373 As to the notice of cross-claim, judgment should be entered in favour of Kingspan. I have accepted that the representations that Pirmax relevantly made about its HR Panel Product (above, [306]) and its ISO3 Product (above, [345]) were, in each case, made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL (above, [346]-[349]). It is, then, necessary to consider what, if any, relief ought to flow in consequence of those findings. 374 Two species of relief are sought. Kingspan seeks injunctive relief (both restrictive and mandatory) directed to: (1) preventing Pirmax from continuing to make the representations that I accept have been made in contravention of the ACL; and (2) requiring that it take steps to ensure that its distributors are informed that the various media through which they were made are not to be republished. It also seeks declaratory relief to record the court's findings that those representations were made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL. 375 As has been recorded, Kingspan does not seek relief in the nature of compensation or damages. 9.1 Preliminary observations 376 Two preliminary observations should be made. 377 The first concerns the terms in which the declaratory and injunctive relief for which Kingspan moves might be framed. No minute of proposed orders was provided; and the closest facsimile appears to be contained within Kingspan's written closing submissions, which relevantly read: Kingspan seeks permanent and mandatory injunctions pursuant to s 232 of the ACL in substantially the following terms: (a) Pirmax be restrained from repeating or further publishing that the HR Panel Representations and the ISO3 Panel Representations; and (b) Pirmax inform its distributors that its technical data sheets and brochures, its website and the test reports accessible on its website are not authorised by it to be re- published or otherwise used to make the HR Panel Representations and the ISO3 Panel Representations. 378 Likewise, the declaratory relief that Kingspan seeks has not been pitched at anything more than a conceptual level. Declarations are sought "…as to the alleged conduct constituting contraventions of ss 18, 29(1)(a) and (g) and 33 of the ACL." Respectfully, those formulations of relief are not sufficiently precise and should be reduced to something more detailed. 379 The second observation concerns the delay that has attended the provision of these reasons. Since the conclusion of the trial, the standard three-year duration of NCC 2019 seems most likely to have ended and it is likely that that instrument has been replaced by a new version. That may or may not impact upon the appropriateness of injunctive relief or the terms in which appropriate relief might be framed. 380 What follows must be understood in that context. 9.2 Injunctive relief 381 Section 232 of the ACL relevantly reads as follows: 232 Injunctions (1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of a provision of Chapter 2, 3 or 4; or (b) attempting to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision. (2) The court may grant the injunction on application by the regulator or any other person. … (4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and (b) whether or not the person has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind. … (7) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised: (a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing. 382 It is readily to be seen that the court's discretion to grant statutory injunctive relief is wide. It is unconstrained by matters that restrict the granting of equivalent relief in equity. It may, for example, be exercised even where there is no reason to apprehend that a respondent (or cross-respondent) might continue to act in contravention of the ACL: Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd [2020] FCA 1340, [86] (Katzmann J). 383 By its written closing submissions, Kingspan contended as follows: Although the evidence does not reveal Pirmax to still make some of the representations (in particular by referring to Group 1 and AS 5637 for the HR Panel Products), that does not undermine the utility of the injunctions as sought. It continues to represent that the HR Panel Products and the ISO3 Panel Products comply with BCA 2016 and BCA 2019, and group classifications determined by AS 5637 remain applicable under that framework. Despite repeated requests from Kingspan's solicitors, Pirmax has also not given any undertakings that it would not continue to make the representations. The orders requiring Pirmax to instruct its distributors are necessary and appropriate because the business model of Pirmax utilises distributors to market its products on the basis of materials prepared by Pirmax with its authority. Although the injunction is mandatory in form, its substantive purpose is to enforce compliance with the prohibitory injunction. (references omitted) 384 I accept those submissions. In the present case, I am satisfied that injunctive relief should issue to restrain Pirmax from further making the representations that I have found were made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL. Conceptually, such relief should, at a minimum, restrain Pirmax from making representations to the effect that: (1) for the purposes of NCC 2016, its HR Panel Products attract (or attracted) a group 1 classification when tested in accordance with AS 5637.1; (2) its HR Panel Products complied, or were considered to comply, with the deemed-to-satisfy requirements of the NCC 2016 for use in internal ceilings as an exposed or concealed soffit lining; and (3) for the purposes of NCC 2019, its ISO3 Products attract (or attracted) a group 3 classification when tested in accordance with AS 5637.1 and AS ISO 9705:2003 (and are (or were), therefore, compliant with NCC 2019); 385 It is also appropriate, again at a conceptual level, to require by way of mandatory injunction that Pirmax take all reasonable steps to inform its distributors that the various media through which it made the representations that I have found were made in contravention of the ACL are no longer to be republished. 9.3 Declaratory relief 386 The court's power to grant binding declarations of right is found in s 21 of the Federal Court of Australia Act 1976 (Cth). As with the court's power to grant injunctive relief, the discretion there conferred is very wide. It should "…be exercised 'sparingly,' with 'great care and jealousy,' with 'extreme caution,' [and] with 'the utmost caution'" and, at all events, with "…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making": Ibeneweka v Egbuna [1964] 1 WLR 219, 224-225 (Viscount Radcliffe, Guest and Upjohn LLJ); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ("Ainsworth"), 596 (Brennan J). 387 Declaratory relief will rarely, if ever, be appropriate unless it can be said that there is some utility to be realised by granting it: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ). 388 Such utility might be said to be lacking in circumstances where other relief is granted in respect of the conduct that is sought to be made the subject of a declaration: Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, 33 [98] (Gray J); Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, [45] (Collier J). 389 It is open to the court to grant declaratory relief that serves to record that identified conduct was engaged in in contravention of a statute: Australian Softwood Forests Pty Ltd v Attorney General (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121, 125 (Gibbs CJ), 136 (Mason J, with whom Stephen J agreed), 137 (Murphy J), 144-145 (Wilson J); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, 94, 98, 100-101 (Sheppard J), 106 (Foster J), 107, 110 (Hill J); Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309, 319 [35] (Sackville J); Justice Robert French, 'Declarations – Homer Simpson's remedy – is there anything they cannot do?' [2007] FedJSchol 24, [50]. 390 Declaratory relief should not, however, be granted merely as a means of recording a court's conclusions: Warramunda Village Inc v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ). 391 Insofar as Pirmax's conduct in making the representations that I have found were made in contravention of ss 18, 29(1)(a) and (g), and 33 of the ACL is to be remedied by means of injunctive relief, I am not persuaded that the court should also make it the subject of declaratory relief. I do not consider that declarations allied to such injunctive relief would serve any purpose. On that front, Kingspan contended that declaratory relief would serve to record the court's disapproval of Pirmax's conduct. I am not persuaded that that is so; and certainly not anymore than is apparent in any event from these reasons. 392 That, though, presumes that injunctive relief should be granted. For reasons already identified, I have accepted that it should be, at least conceptually. As is addressed below, the extent to which—and the form in which—injunctive relief should follow is a matter about which the parties should provide further input. It is conceivable that, following receipt of that input, injunctive relief might be limited in some way or even abandoned altogether. In those circumstances, there might yet be some utility to be realised by a grant or grants of declaratory relief. 393 That being so, I am unwilling to do any more now than to indicate a conceptual reluctance to grant declaratory relief in respect of representations that are to be the subject of injunctions. Insofar as Pirmax is to be restrained from making representations of the kind that I accept were made in contravention of the ACL, no associated declaratory relief should be granted. 9.4 Relief to be granted 394 I identify above, at a conceptual level, the relief that I consider appropriate herein. In light of the observations made above (at [377]-[379]), it is appropriate at this juncture to refrain from propounding final relief so that the parties may confer and, if possible, agree on orders that reflect the findings contained herein. I will grant them 14 days (or such longer period as they might agree is necessary) to that end. Unless there is some reason not to, I will make orders as agreed. 395 If the parties cannot reach agreement on the terms of relief that reflects what is said above (particularly at [384], [385] and [393]), then they should each submit a minute of the final orders that they propose that the court should make, together with a very brief submission (of no more than three pages) as to why it best reflects the analysis in this part of these reasons. They should do so within 21 days. Absent some need for further hearing, I will make orders by way of final relief on the papers. 396 The orders to be proposed—by agreement or otherwise—should also address the question of costs. There does not presently appear to be any reason why standard orders shouldn't be made: that is, orders requiring that Pirmax pay Kingspan's costs of the application and cross-claim. The parties can indicate (by agreement or otherwise) whether any such reason exists in the orders that they propose as above. I certify that the preceding three hundred and ninety-six (396) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 14 November 2022