Ground 1: section 117(2)(b)
308 Quaker contends that s 117(2)(b) enshrines an objective test which the primary judge failed to apply.
309 Section 117 relevantly provides:
(1) If the use of a product by a person would infringe a patent, the supply of that product by one person to another is an infringement of the patent by the supplier unless the supplier is the patentee or licensee of the patent.
(2) A reference in subsection (1) to the use of a product by a person is a reference to: …
(b) if the product is not a staple commercial product - any use of the product, if the supplier had reason to believe that the person would put it to that use;
…
310 Section 117(2)(b) directs attention to whether the supplier the subject of s 117(1) "had reason to believe" that the person to whom the product was supplied would use the product in a way which would infringe a patent. It is an objective test. We will address the nature of this objective test later.
311 Quaker submitted that the primary judge's failure to apply an objective test was demonstrated by a series of related findings.
312 Quaker referred in particular to what the primary judge had stated at [780]:
2. "Reason to believe"
Said by Fuchs to be relevant to this issue in respect of each mine site is the question of product concentration. In broad terms Fuchs contended that there was a clear difference between low concentration products, supplied for leak detection, and high concentration products promoted as suitable for HPFI detection. But the context is Fuchs' reason to believe that the products would be used in the patented method. The most direct way of addressing that issue is to examine whether the operator of the mine sites in question said that HPFI detection was the purpose for which it wanted to buy the product. Quaker submitted that the product for use in leak detection was in effect substitutable and the same product could be used for HPFI. As part of its defence, Fuchs submitted that a product supplied for the purpose of leak detection had a different and substantially higher [sic - lower] concentration of the dye in the fluid, it being the case that fluorescent dye had for many years been added and used for leak detection.
313 The primary judge also stated (at [787]):
Where a third party dye was used by Fuchs in respect of the relevant mines apart from Broadmeadow, Mr Knight's evidence, which I accept, was that 8g of dye was added per 100L of Solcenic concentrate, 0.24g per 100L of Solcenic emulsion (containing 97% water), or 1g per 100L of Renolin mineral hydraulic oil. In the case of Broadmeadow, Fuchs added 180g of dye per 100L of Solcenic concentrate. In that case, Mr Knight's evidence was to the effect that the treat rate had been selected to match the colour, light absorbance, light transmittance, and saturation in Solcenic of FluidSafe at Quaker's recommended treat rate for HPFI detection. At least as regards Solcenic, I find that there is a clear difference between the treat rate adopted for third party dyes at Broadmeadow, developed as suitable for HPFI detection, and those at other relevant mines. The evidence does not go so far as to establish that the non-Broadmeadow Solcenic products could not be used for HPFI detection, but because of the stark difference in treat rates it cannot simply be assumed that they could. The question of whether Fuchs had reason to believe they would be put to that use thus falls to be determined by reference to what I have already described as the most direct evidence on that topic, being its communications with customers around the time of the supply.
314 But it is necessary to read these passages in the context of the whole of the reasons, in particular the structure of the reasoning in relation to s 117(2)(b).
315 At the commencement of the primary judge's analysis at [780], his Honour recorded a submission made by Fuchs that it was relevant to have regard to the level of product concentration required respectively for leak detection (low concentration) and HPFI detection (high concentration). He also recorded a submission made by Quaker that the product used for leak detection was substitutable and the same product could be used for detecting HPFI.
316 The primary judge recorded that Quaker had provided to the Court a list which was said to identify requests made by mines to Fuchs for Fuchs to supply dye for HPFI and concluded that many of them were "no more than enquiries" ([783]) about the possibility of use of the dye, and that there were many instances where there was in any event no supply.
317 His Honour stated (at [781] to [783]):
Quaker provided a list or table in the proceedings of what it described as requests made to Fuchs for dye for HPFI. There were 44 such instances in Quaker's document. Nine of the 44 were referable to BMA's Broadmeadow mine site where, as I explain in more detail below, I find that Fuchs did have reason to believe that the product, not using the FluidSafe dye, would be used for HPFI.
Leaving aside Broadmeadow, I do not accept Quaker's submission that where Fuchs supplied product containing fluorescent dye for leak detection it had reason to believe that the operator of the mine would use the product for HPFI detection. In my opinion, while aware of what occurred in relation to Broadmeadow, each supply is to be looked at on its own terms. In other words, hindsight should be put to one side and I would not accept that what occurred in relation to Broadmeadow showed that Fuchs had a propensity to make such supplies.
Many of the instances in Quaker's document are not requests made to Fuchs for dye for HPFI but are no more than enquiries in circumstances where, as I find, the possibility of using fluorescent dye for HPFI detection was a matter of great interest at the time to those concerned with mine safety. Even where there were requests, in many instances such as the Xstrata (Glencore) mine site at Ravensworth it was not established that there was any supply by Fuchs of dyed fluids. In other instances although dyed fluids were supplied, the dyes were FluidSafe and it appeared to be accepted by Quaker that the supply by the patent holder of FluidSafe carried with it an implied licence to use the method in the Patents. I consider the correspondence relating to the specific mines relevant to these proceedings in more detail below.
318 The primary judge examined each of the 44 customer "requests" relied upon by Quaker, which it said were relevant to the question of "reason to believe" whether products supplied by Fuchs would be used for HPFI detection (see at [328], [421], [781] and [783]). Having reviewed the communications relevant to those "requests" and the cross-examinations which related to them, the primary judge found that (save for communications concerning the Broadmeadow mine) they did not support Quaker's contention (at [783] and [790]); see also [811] to [823] (for the Glencore mines) and [824] to [834] (for the Yancoal mines).
319 His Honour accepted (at [784]) that Quaker's FluidSafe (formerly Oil-Glo) dye could be used for both leak detection and HPFI detection, but that for HPFI detection, the dye had to be used in a higher concentration.
320 He accepted that Mr Stuart Knight, the deputy managing director of Fuchs, had that understanding. The primary judge did not accept (at [790]) Quaker's contention that references to the supply of dyed product for leak detection should be taken as code for the supply of dyed product for HPFI detection. The primary judge also rejected (at [790]) Quaker's submission that the references to leak detection in the documents in the tender bundle "constituted or contained a covert reference to HPFI detection". His Honour found (at [791]) that "Fuchs was conscious of the possibility of infringing the Patents by its supplies and, Broadmeadow apart, took steps to communicate to the operators of the relevant mine sites that the product in question was not to be used for HPFI detection".
321 His Honour also concluded (at [785] and [786]) that Quaker's marketing material distinguished between the different uses based on concentration.
322 Having made these observations about the question of whether Fuchs "had reason to believe", the primary judge then considered the question separately in relation to BMA concerning the Broadmeadow mine ([798] to [810]), Glencore concerning the Ulan No 3, Ulan West, Bulga and Oaky North mines ([811] to [823]) and Yancoal concerning the Ashton and Moolarben mines ([824] to [834]).
323 In relation to the Broadmeadow mine, the primary judge accepted (at [801]) that Fuchs "had reason to believe" that BMA would use the product in a way which would infringe a patent.
324 In relation to the supplies relevant to the Glencore and Yancoal operated mines, such supplies were not of a product with a high concentration of dye. His Honour did not accept that Fuchs "had reason to believe" that the recipients of the supplies relevant to those mines would put the product to an infringing use.
325 In relation to Glencore, his Honour said (at [812], [813] and [815]):
Quaker accepted that supplies to the Ulan No 3, Ulan West and Bulga mines were said to be for the purpose of "leak detection" but submitted that the Court should find that, despite such public statements, Fuchs had reason to believe that those mine sites would, if a suspected fluid injection occurred, use the products supplied by Fuchs in an infringing manner.
I do not accept that submission and I do not accept Quaker's reading of the correspondence …
…
In my opinion it is unlikely that Glencore communicated with its supplier Fuchs by stating that it proposed to use a product supplied for one purpose, leak detection, but that in truth it intended to use the product for another purpose, HPFI. There was no plain evidence to this effect and the clear statements are to the effect that the supply was the purpose of leak detection. I decline to draw the inferences for which Quaker contended. It is to be recalled that HPFI related to the safety of employees.
326 Now Quaker's principal complaint is that the primary judge's reasons as a whole revealed that the primary judge treated the communications between Fuchs and its customers as determinative. Accordingly, Quaker complains that his Honour did not consider the issue objectively, in light of all of the circumstances required by s 117(2)(b).
327 We have already set out [780] and [787]. Quaker also referred to other passages of his Honour's reasons at [813] to [815], [821] to [822], [832] and [834].
328 Further, Quaker submitted that the primary judge found that, where Fuchs supplied a product purportedly for one purpose, being leak detection as suggested in the communications with the relevant mines, it could have no reason to believe the mines might use the product for another purpose, being an infringing use. Quaker referred to [782], [787], [791], [812] to [813], [815], [821] and [832] of his Honour's reasons.
329 Quaker also referred to the primary judge's findings which addressed the subjective understanding of Fuchs or that of Mr Knight including (at [791] and [821]):
I find that Fuchs was conscious of the possibility of infringing the Patents by its supplies and, Broadmeadow apart, took steps to communicate to the operators of the relevant mine sites that the product in question was not to be used for HPFI detection. I do not infer from these references that Fuchs proceeded on the basis that the product having a concentration of fluorescent dye suitable for leak detection could be used for HPFI detection.
…
In relation to Mr Knight, I accept in particular his evidence that Fuchs did not support the HPFI dye methodology, that Fuchs was only providing the dye for HPFI where it was requested by the customer and that the only HPFI dye that Fuchs were supplying at that time, that is other than at Broadmeadow, was FluidSafe. I also accept Mr Knight's evidence that he did not agree, by reference to an email of 18 December 2015, copied to him, that a Fuchs products [sic] containing a dye for leak detection purposes could also be capable of being used for HPFI detection. Mr Knight considered it clear that a dye for leak detection had a much lower concentration than a dye for HPFI detection.
330 In our view there was no error by the primary judge in considering whether the correspondence relied upon by Quaker established that Fuchs in fact believed that the recipient of the product would use the product in a way which would infringe a patent. That was a central feature of the case which Quaker had put. Accordingly, it is unsurprising that the primary judge addressed subjective understanding in detail given the focus which Quaker had given to the point in its submissions.
331 Further, the primary judge's reasons at [780] do not establish that the primary judge applied a subjective rather than objective test. Because s 117(2)(b) directs attention to whether a supplier "had reason to believe" that the person to whom the product was supplied would use the product in a way which would infringe a patent, it is relevant to take into account what the recipient of the supplied product stated about the intended use of the product. Whether or not this is the "most direct way" of establishing that the supplier "had reason to believe" can be put to one side. All that the primary judge intended was to say that pre-supply statements made by a recipient of the supplied product that the product was to be used in a way which infringed the patent would be highly probative of whether the supplier "had reason to believe" that the recipient would so use the product. That proposition is correct.
332 Further, Quaker's principal case at trial was that Fuchs both knew and intended that its products would be used for HPFI detection at various mine sites, and that the documents suggesting otherwise were somehow manufactured to provide false cover. The primary judge rejected that case on the facts. The primary judge's reasoning, rather than involving any legal error, was responding to the case actually run by Quaker.
333 Indeed, we were provided with a copy of Quaker's written closing submissions below on the question of infringement which ran to 49 pages. A cursory examination reveals heavy reliance by Quaker on Fuchs' actual purpose, knowledge and conduct including its contemporaneous documents and communications; see [27], [51], [91], [92], [108] and [116] as examples. In our view his Honour addressed the case as forensically put by Quaker on s 117(2)(b), which was then rejected.
334 Further, in our view the analogies Quaker seeks to draw with cases such as Generic Health Pty Ltd v Otsuka Pharmaceutical Co Ltd (2013) 100 IPR 240 and AstraZeneca AB v Apotex Pty Ltd (2014) 226 FCR 324 are inapposite.
335 In the present case, not only did Fuchs specify that the relevant leak detection products were not for use for HPFI detection and were not suitable for use for HPFI detection, but the relevant products were entirely different products from those sold as suitable for HPFI detection. The leak detection products sold by Fuchs had a dye concentration 22.5 times weaker than the products sold for HPFI detection. Unlike the position in Generic Health or AstraZeneca, there was no evidence that the Fuchs leak detection products, which had a low dye concentration, were capable of detecting high pressure fluid injections, and the primary judge (at [787]) concluded that "it cannot simply be assumed that they could". Further, we are dealing here with different products (i.e. with different concentrations), rather than with the one product put to different uses.
336 Further, Quaker's assertion that there was a possibility that a miner, faced with an injured fellow worker, might at that time grab a UV light and work the method of the invention (contrary to mine instructions in evidence to use the leak detection product only for leak detection) reflects the wrong legal test.
337 Further, in AstraZeneca the Full Court contrasted the trial judge's finding that there was only a "risk", with a factual finding that there was a reason to believe that people "would" undertake the relevant activity. The Full Court said (at [438] and [439]):
On the primary judge's analysis of the evidence, AstraZeneca established that the generic parties were aware (or, objectively, should have been aware) that there was a risk that consumers would split the generic parties' 20 mg tablets in order to save money. However, her Honour stopped short of holding that they had reason to believe that consumers would engage in such a practice.
It is difficult to draw any precise conclusions as to how widespread the practice of 20 mg tablet splitting might become (at the time of trial the generic parties' products were not yet on sale) without knowing what developments might occur in the marketplace with respect to the pricing of both the generic parties' 20 mg products and AstraZeneca's 10 mg product. The more AstraZeneca's 10 mg product costs relative to the generic parties' 20 mg products, the more likely it is that consumers would buy and split the generic parties' 20 mg products. However, in our view, contrary to the finding of the primary judge, the evidence established that the generic parties had reason to believe that some consumers would put the generic parties' 20 mg products to an infringing use.
338 But the evidence in that case is far removed from the present case. Quaker has not even established that Fuchs' leak detection product could be used for HPFI detection, let alone that people were in fact doing that. We note that in AstraZeneca there was considerable evidence that people were splitting tablets (see [435] and [436]).
339 We should make another point. We agree that Bennett J's reasoning at [103] and [106] of Generic Health is not reflected in the reasons of the other members of the Full Court.
340 Emmett J said (at [35]):
The question is whether there were factual matters known to Generic Health that would lead a reasonable person to believe that the GH products would be put to an infringing use. It is not to the point that Generic Health, through its relevant officers, did not actually have such a belief. The question is whether there was material before the primary judge that could support a finding that a reasonable person in the position of Generic Health would have reason to hold such a belief.
341 Further, Greenwood J's reasons (at [221] to [230]) reflect Emmett J's approach.
342 We also note that French J in Collins v Northern Territory (2007) 161 FCR 549 at [64] to [66] said:
The words "reason to believe" in s 117(2)(b) have long standing statutory antecedents. They and similar formulae frequently condition the exercise of statutory powers and require at least, an objective basis for the relevant belief and, according to context, require actual belief: WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 185-186; 30 ALR 559 at 571 and authorities there cited. On the other hand the formula may be taken, according to its statutory context, to convey a requirement for an objective basis for belief without the necessity of actual belief: eg George v Rockett (1990) 170 CLR 104 at 112.
Where the words "reason to believe" condition a power they are used to ensure that the exercise of the power is justified by reference to objective facts and is not to be exercised simply upon unsupported belief. The same term in s 117(2)(b) defines a necessary condition of liability for contributory infringement in relation to the supply of non-staple commercial products. It could be construed as purely objective in the sense that there were factual matters known to the supplier which would lead a reasonable person to believe that the product would be put to an infringing use. An alternative construction would additionally require the supplier to actually believe that the person supplied would put the product to such a use. The analogous provision in s 271(c) of the Patents Act 1952 (US) is satisfied by actual knowledge without requiring reasonable grounds for the knowledge. Section 60(2) of the Patents Act 1977 (UK) would also be satisfied by actual knowledge without reasonable grounds. But it provides an alternative basis for liability, namely that "… it is obvious to a reasonable person in the circumstances that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom".
To construe s 117(2)(b) as requiring actual knowledge supported by reasonable grounds would render the scope of liability for contributory infringement under Australian law narrower than that under United States or United Kingdom law. Unlike those jurisdictions, it would require both subjective belief and the objective basis for it to be proven. The better construction, consistent with the harmonisation purpose of the legislation, would appear to be objective. In the present case his Honour's finding as to the Northern Territory's reason to believe that ACOC would use the timber from the trees for the purpose of producing cypress oil appears to have been supported by reference to purely objective criteria. His finding in that respect is not in issue in this appeal. The preceding observations about the proper construction of the "reason to believe" requirement are therefore strictly obiter.
343 Bennett J in Generic Health said (at [106]):
The proper construction of s 117(2)(b) must be that there is a reasonable belief of a significant likelihood that a person will put a product to that use. This construction is assisted by the use of the words "reasonable belief", rather than "knowledge". A person may have a reasonable belief that an event will or would happen without having knowledge that the event will or would necessarily happen. A reasonable belief that an event would happen arises from a belief in the likelihood of that event. That likelihood must be significant. A belief that an event is of a low likelihood would amount to a reasonable belief that the event may happen. The word used by s 117(2)(b) is that that a person would put the product to that use.
344 In our view, her Honour's reasoning reads into s 117(2)(b) words which do not appear in that provision. It states "any use of the product, if the supplier had reason to believe that the person would put it to that use", not, as her Honour poses, "a reasonable belief of a significant likelihood that a person will put a product to that use".
345 Perhaps her Honour's conclusion in [106], in the light of [104] and [105], may be driven by considerations arising from Grimme Maschinenfabrik GmbH & Co KG v Scott (2010) 89 IPR 631 referred to by her Honour. But the equivalent section in the UK legislation, which was s 60(2) of the Patents Act 1977 (UK), provided that a person infringes a patent for an invention if he supplies or offers to supply:
… any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect …
346 That is a different standard than s 117(2)(b). In any event we do not need to linger on this aspect. We prefer the approach of the other members of the Court in Generic Health and also that of French J.
347 As we have indicated, the present case involves different products with different uses, not just a single product with multiple uses.
348 Further, this was not a case like AstraZeneca where the evidence established that consumers would use the generic parties' 20 mg products for an infringing purpose in some cases under doctors' instructions. Nor was it a case like Generic Health where the evidence established that aripiprazole had been used by a "not insignificant number of clinicians ... as a realistic and legitimate option to treat patients" including for the patented method; see Otsuka Pharmaceutical Co Ltd v Generic Health Pty Ltd (No 4) (2015) 113 IPR 191 at [246] and [247] per Yates J, with the discussion on appeal in Otsuka Pharmaceutical Co Ltd v Generic Health Pty Ltd (2016) 120 IPR 431 not being relevant.
349 Further, since 2015, Fuchs has supplied to the Glencore and Yancoal operated mines a number of fluid products which included fluorescent dye. The five products supplied, being four Solcenic water-based longwall fluid products and one Renolin hydraulic mineral oil product, by Fuchs to Glencore and Yancoal were expressly marketed for use for the purpose of detecting leaks in high pressure fluid lines of equipment used in mining operations. Leak detection serves an important safety function in mining operations since early detection will avoid catastrophic failure of fluid lines. Fluorescent dyes in high pressure fluids when combined with UV light are used to facilitate the identification of potentially dangerous leaks.
350 Consistently with this, an internal Ulan No. 3 (Glencore) document titled "Toolbox Talk" dated 2 April 2014 referred to by the primary judge (at [99]) stated:
To assist to reducing cost to the operation Fuch (sic) our oil supplier are introducing Fluoresceine LT dye into the hydraulic oil and solcenic fluid. This dye will assist in locating leaks.
…
• Similar to the dye used previously on the longwall (lower concentration), this dye CAN NOT be used for detecting fluid injections.
…
351 But we accept that his Honour did not expressly rely on this document in making relevant findings. Further, that document related to only one of Glencore's mine sites being the Ulan underground mine. Further, the document's status suggests that it was a draft and not promulgated to Glencore's workers.
352 Further, the primary judge observed (at [787]) that whilst the evidence did not go so far as to establish that the leak detection products could not be used for HPFI detection, "because of the stark difference in treat rates it cannot simply be assumed that they could".
353 Quaker's submission that Mr Russell Smith, a longwall hydraulics consulting engineer who was called as an independent expert by Fuchs, accepted that in some circumstances a dye at a concentration appropriate for leak detection could be used as part of the claimed method is problematic. Mr Smith did not accept that Fuchs' leak detection products, which had a low dye concentration, would be readily suitable for such a purpose.
354 Mr Smith was cross-examined and gave the following evidence:
Q: Now, you referred in your summary of your view on this topic a short while ago, Mr Smith, to the concentration of dyes used in fluids for leak detection not being sufficient for use in the method of the patents. Do you recall?
A: Not necessarily sufficient.
Q: Yes, not necessarily sufficient is an important qualification, isn't it.
A: Yes.
Q: Because it may well be that a product which is a fluid that includes a fluorescent dye at a particular concentration that's supplied for leak detection could also be capable of being used in a method for detecting a fluid injection injury; correct?
A: In some circumstances I think it would.
Q: And it would depend on, among other things, the concentration, the intensity of the UV light and the like.
A: And the nature of the injury.
Q: Thank you. So you're not able to say, are you, categorically, that a product supplied for use in leak detection, including a particular concentration of dye would not be capable of being used in the method of the patents.
A: That is right.
355 Further, the primary judge, as he was entitled to do, accepted (at [821]) the evidence of Mr Roberts and Mr Knight, both of whom were cross-examined at the trial, including Mr Knight's evidence that he did not agree that a dye for leak detection could also be capable of being used for HPFI detection.
356 His Honour was not persuaded that Fuchs had any "reason to believe" that, at the time products were supplied, they would be used for HPFI detection purposes. In reaching that conclusion, he found that the concentrations of dye required for HPFI detection and leak detection were very different. Indeed, the concentration of fluorescent dye in fluid provided by Fuchs for leak detection was 22.5 times less than the equivalent amount of FluidSafe that Quaker directed was suitable to create fluids for use in HPFI detection.
357 The evidence revealed that the concentration of fluorescent dye was significantly higher in products supplied and used for HPFI detection than for leak detection purposes. The primary judge found (at [787]) that there was a "clear difference" between the treat rate adopted as suitable for Fuchs' Solcenic products used for HPFI detection at the Broadmeadow mine compared to those supplied to the Glencore and Yancoal mines for leak detection. The clear difference between HPFI and leak detection concentrations was reinforced by the fact that Quaker's own marketing materials likewise distinguished between different uses based on concentrations (at [785] and [786]). The practical significance of the difference in dye concentration is clear. If the dye concentration is not sufficient to be detected under the skin once injected, the risk of a "false negative" arises, where a worker is believed not to have suffered an HPFI injury when in fact they have, which could have very serious safety and treatment consequences as his Honour said.
358 Although different uses could be based on different concentrations, since Fuchs had never tested whether its leak detection fluids were suitable for HPFI detection, the primary judge considered (at [787]) that the evidence did "not go so far as to establish that the non-Broadmeadow Solcenic products could not be used for HPFI detection, but because of the stark difference in treat rates it cannot simply be assumed that they could".
359 We agree with his Honour that it is difficult to see how Fuchs could have "reason to believe" that a product would be used for a purpose where it has not been established that the product is realistically capable of use for that purpose.
360 Further, Quaker appeared to put a case that both Fuchs and Glencore had fabricated a self-serving paper trail, not only in communications between the two companies, but also in Fuchs' and Glencore's internal communications, including Glencore's internal communications to its employees. Such a case had no substance to it and the primary judge rightly rejected it. Quaker's theories were rejected by the primary judge (at [811] to [834]). No challenge has been made to such findings.
361 Further, to the extent Mr Knight's subjective understanding was mentioned in the primary judge's reasons, that was responsive to the way Quaker conducted the trial, which required the primary judge to make findings as to whether the evidence of Fuchs' witnesses, namely, Mr Knight and Mr Roberts, on Fuchs' communications with Glencore and Yancoal ought be accepted.
362 Generally, the primary judge did not just focus on any subjective belief of Fuchs, but rather considered a range of matters that bore on the question whether, considered objectively, a person in Fuchs' position would have "reason to believe" its products would be put to an infringing use. That included the objective communications, including those from the mines.
363 The primary judge (at [787]) said that because the evidence did not go so far as to extinguish the possibility that leak detection products could be used for HPFI detection, the question whether Fuchs had "reason to believe" they would be used for HPFI purposes "thus falls to be determined by reference to what I have already described as the most direct evidence on that topic, being its communications with customers around the time of the supply". So, the nature of Fuchs' communications with customers played a pivotal role in determining whether a reasonable person in Fuchs' shoes would (objectively) have reason to believe that the relevant products would be used for HPFI detection purposes. These communications were relevant to what a reasonable person in the position of Fuchs would objectively have understood from them. They concerned steps taken by Fuchs to communicate with the operators of the relevant mine sites that its products in question were not suitable to be used for HPFI detection, and confirmation by Fuchs' customers that they would not use the relevant products for that purpose.
364 For the above reasons, in our view it has not been shown that the primary judge made any error.
365 But even if we were to have accepted that the primary judge erred in placing too much emphasis on subjective questions, or in not addressing the issue raised by s 117(2)(b) on an objective basis, his Honour's ultimate conclusion is unlikely to have been any different. And we would, on the correct application of s 117(2)(b), have reached the same conclusion as the primary judge in any event.
366 The primary judge accepted that the concentration of dye for HPFI detection was significantly higher than for leak detection. In the case of the Broadmeadow mine, Fuchs used 22.5 times the amount of dye to develop the fluid as suitable for HPFI detection, as was used for leak detection. Whilst the evidence did not establish that the lower concentration products could not be used for HPFI detection, the primary judge was not prepared to assume that they could in light of the different concentrations used. As Fuchs submitted, a reasonable person would not assume that a mine, with numerous employees, would use for HPFI detection a product expressly sold as being unsuitable for that purpose, in circumstances where if a lower concentration dye product were used for HPFI, and no injury were detected (because of the weak dye) and the worker did not receive proper medical attention, the worker could suffer very serious illness, including amputation or death. Again as Fuchs submitted, no mine would use a product sold only for leak detection for the purposes of medical diagnosis, and the evidence did not establish that any mine contemplated such a course.
367 Accordingly, if the primary judge erred in the way Quaker contended, we would in any event have reached the same conclusion. This ground must be rejected.