Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337

Vision Glass Samples 98 Granitgard obtained material from the factory on two occasions in June 2008. The first such occasion was in the course of an inspection of the factory by Ms O'Neill and Mr Hunt. 99 Mr Hunt describes himself as an "Extractive Industry Consultant". Though not formally qualified in civil engineering (he commenced tertiary study in that field but has never completed a degree), Mr Hunt has very lengthy and responsible experience in the management of crushing plants for a variety of civil engineering applications. He was well qualified by that experience to express opinions in relation to the performance and quality control systems at the Vision Glass plant. He impressed me as a dispassionate observer. Unfortunately, that does not mean that what he and Ms O'Neill obtained from the Vision Glass plant was the product which that plant was producing for Termicide as Termiglass. 100 In the course of their inspection Ms O'Neill and Mr Hunt obtained from vision glass three sandwich bags of glass particles. Of these, two were marked "MUR Export Product" and "QME Other Use" respectively. I am not satisfied that the bags so marked were indeed the Termiglass product produced by Vision Glass for Termicide. The other bag which they obtained was indeed the product known as Termiglass. 101 Mr Hunt later returned alone to the Vision Glass factory. He made a request that the production manager provide him with a bag of Termiglass. This request was complied with. I am satisfied that this bag did contain the product known as Termiglass. 102 Mr Hunt delivered each of these four (alleged) samples of Termiglass to Golders where they were analysed by Mr Angus. The resultant report from Golders discloses that, of these, the two which did indeed comprise Termiglass contained the following percentage of glass particles within the range 1.7 - 2.36 mm: (a) sandwich bag sample - 94%; (b) later sample obtained from production manager - 95%. 103 After the analysis had been completed Mr Walker directed a Mr Pearce to collect all of the sample material, i.e. all four bags from Golders and send them on to Dr Ewart for testing. Dr Ewart's evidence is that he received for testing a sample marked "Vision Glass bag sample". Of that retrieved from Golders, which included sample material which was not Termiglass, exactly what went to Dr Ewart was not established by the evidence led by Granitgard. Given the presence of material that was not Termiglass that absence of precision is significant. 104 Once again, Granitgard is not obliged to prove to demonstration that the material sent to Dr Ewart on this occasion was Termiglass. Subject perhaps to one consideration arising from the test which Dr Ewart made of the material he received, it is no more probable that this material was Termiglass than it was a combination of Termiglass and the other non-Termiglass material or was not even comprised of any Termiglass material at all. The amount of the material which Dr Ewart received was not, in his opinion, sufficient for him to undertake a full schedule of tests. He tested one replicate at a depth of 25 mm. It was not penetrated to a depth of more than 20 mm by the termites in the test jar. Having regard to other observations concerning the performance either of material of a kind that came to be called Termiglass (the 95% medium range particles upon which Dr French originally reported) or satisfactorily proved to be Termiglass, Dr Ewart's observation as to the performance of this sample is consistent with a conclusion that what he received was indeed a portion of that part of what Ms O'Neill and Mr Hunt or, as the case may be, Mr Hunt alone received which actually was Termiglass. There is though an element of speculation in adopting that consistency as a determinant of what is otherwise a matter of alternatives no one more probable than the other. It may just be that a known combination or known non-Termiglass sample would also have yielded such a result if either had been measured. In the end, I am not satisfied on the balance of probabilities that, on this occasion, Dr Ewart reported on Termiglass. 105 In reaching these conclusions I should make it plain that they in no way carry with them any adverse inference as to the character of any of the witnesses mentioned. I was merely left with the impression that the importance of reliable evidence as to product provenance, chain of continuity and, as the case may be, absence or detection of possible contaminants had not fully been appreciated or at least carried into practice. For example, the handling and tracking of continuity procedures within the test laboratories of Cardno Bowler and Golders were impeccable but that does not carry with it the conclusion that everything that was sent to or collected from these laboratories was truly the product known as Termiglass. 106 I next consider whether the product supplied by Termicide as Termiglass for installation in its barrier system is indeed what it is supposed to be? That necessarily entails consideration of issues concerning the manufacture of the product so supplied. 107 Prior to Termicide's application to the CSIRO for what became the CSIRO Appraisal Mr Schaffer inspected the Vision Glass factory. It was already then in operation. At that time it was supplying crushed glass which was used for other purposes, including recycling. To him, the factory seemed suitable for the consistent manufacturing of the crushed glass for the purpose of the proposed termite barrier. Mr Hunt, who inspected the factory in 2008 at Granitgard's request, observed of the factory that it was "well suited to the process [of producing Termiglass] and the capacity in screening (where it counts most) is more than adequate". Like Mr Schaffer, Mr Hunt struck me as a dispassionate, well experienced observer. He, too, was of considerable assistance. So far as factory capability is concerned, the views of Messrs Schaffer and Hunt essentially coincided. The factory is well and truly capable of consistently manufacturing the crushed glass product known as Termiglass with a proportion of medium particles that is, in terms of the Standard, "sufficient". There is no substance in the want of factory capability allegation which Granitgard has made against Termicide. 108 Factory capability is one thing, factory quality control is another. In this regard, too, I thought that there was a coincidence of reservation by Dr French and Mr Schaffer on the one hand and, on the other hand, observation in practice by Mr Hunt. 109 In the course of describing in his oral evidence the course of development and manufacture of Granitgard's product of that same name Dr French referred to the continued liaison which he and others had with the manufacturers - "we kept in touch all the time with the manufacturers and they had the problems, of course, doing it from scratch; because no-one had ever done these things before, and I would have to say that they have done - they have done a pretty remarkable job, and I think it's just a question of quality control" (emphasis added). My impression at the time was that, though Dr French was speaking against the particular background of the Granitgard product's development, he was, in making this latter remark, intending to convey a more widely applicable reservation in respect of the need for quality control in the manufacture of a particle barrier system product. 110 I have already referred to Mr Schaffer's evidence as to the particular need for stringent quality control with Granitgard's product because its input is natural and non-homogenous. When Mr Schaffer came in 2003 to reflect in advance on the likely suitability of a crushed glass particle barrier system with particles in the 1.7 mm to 2.4 mm range he was aware then that, "even with good quality control procedures, there would probably be some small percentage of materials outside [that range]" (emphasis added). By the time he came to give evidence in this case Mr Schaffer's views had not changed. i.e. he accepted a need for quality control but also accepted that , even if that control were good, it would still not yield a product free from material outside the medium range. 111 Mr Hunt's assessment of the production of Termiglass at the Vision Glass factory highlighted to him "a number of factors which are loosely controlled or perhaps not fully understood". These were: (a) raw material control, particularly in relation to glass type and contamination, which is a quality issue; (b) a need for methods of monitoring, measurement and recording to be more visible; (c) a need for a better understanding of the ongoing importance of maintenance of plant screening abrasive materials; (d) a lack of a documented Quality Assurance Program, which Mr Hunt saw as a major concern in respect of a product guaranteed for 50 years or more; (e) a need for compliance testing at least to be carried out in accordance with standard test methods with National Association of Testing Authorities, Australia (NATA) accreditation offering "some comfort" to customers; (f) the addition of product information on each bag so as to improve traceability. 112 Termicide conceded that, "because of the absence of documented controls, quality control at Vision Glass leaves something to be desired". I agree. Given his evidence as to factory capability, I took Mr Hunt to be sounding a warning note in relation to the possibility, for the reasons he gave, of the production by Vision Glass of a product that did not conform to the requisite performance criteria for use in the Termiglass particle barrier system, not that the factory wasthen producing a non-conforming product. I accept that Termicide does undertake batch sampling and that, resultantly, batches of crushed glass from the factory are occasionally rejected. I thought though that here, too, that, apart from retention of samples, evidencing of this process was problematic. I accept that the sampling undertaken did not suggest a systemic inability on the part of Vision Glass to produce medium range crushed glass particles of "sufficient proportion". 113 The randomly selected samples of what undoubtedly was being produced as Termiglass at the factory at the time of Mr Hunt's visit, being two of the samples analysed by Golders, to me suggest that this possibility was not then an actuality so far as the supply of product likely to conform to the Standard's performance criteria for installation in a particle barrier system was concerned. I have set out the medium range percentages obtained on analysis above. When one takes these in conjunction with Dr French's evidence as to a "sufficient proportion" and, further, in conjunction with the results of testing and analysis conducted or caused to be conducted by Dr Holt in April/May 2008 tests and the known performance of the Termiglass barrier system in tens of thousands of installations over the years since 2004, it is improbable that this possibility has become as yet an actuality. That conclusion, in turn, is based on some conclusions which I have reached in relation to evidence concerning alleged breaches of the barrier system, a preference for Dr French's opinions where they differ from those of Dr Holt and Dr Ewart and also views expressed by Mr Schaffer and Mr Meadows. I detail these conclusions and the reasons for them at some length below. 114 Termiglass was not described in the CSIRO Appraisal as being comprised of glass of any particular origin, type or colour. At one stage, it seems, in a patent application, it was described as derived from "plate glass" but none of the experts opined that, unless the barrier was comprised of glass that, before crushing, was "plate glass" it was doomed to fail. In this sense, the time spent in cross examination in exploring understandings as to what was or was not "plate glass" was but a distraction. 115 Neither was there any evidence that a crushed glass particle barrier, if it is effective at all against subterranean termites, is only effective if comprised of glass of a particular colour. The colour of various samples of glass had an importance in the case only in terms of endeavours, one way or the other, to discern a chain of continuity with samples or supposed samples of Termiglass. Some witnesses attested to variable colour in the product which they understood to be that supplied as Termiglass. Mr Baverstock noticed a change in colour to what he described as "camouflage glass". So, too, did Mr Prow notice a change in colour. Mr Paul Jeynes acknowledged that the colour did vary, depending on the source glass material used in production. I accept that there were variations in the colour of Termiglass over the years. I can also understand how the change in colour might well have raised an interrogative note in the minds of men without relevant, formal, tertiary scientific training such as Messrs Baverstock and Prow. Again though, unless colour is important in terms of barrier efficacy, and there was no evidence of this, particularly from those with scientific knowledge such as Dr Ewart, Dr Holt, Mr Meadows, Dr French and Dr Ahmed, consistency of colour is but a distraction in terms of whether there is any false, misleading or deceptive quality about the alleged representations. 116 The same applies to "smell". There was some evidence of a witness, Mr Prow, noticing on occasion a smell of beer about the product. I should have expected reference to a beer smell in the Termiglass samples tested by Golders and by Dr Holt if that were a prevalent quality in the product for the samples of what was actually Termiglass which they received were truly random. There was no such evidence. By the time he gave this evidence Mr Prow had secured employment with Granitgard. It does not follow from this that his evidence is therefore to be disbelieved any more than it follows that the evidence of present Termicide employees should be disbelieved. It is not inconsistent with a change in the source of recycled glass for production that there may occasionally have been such a smell in isolated batches. In the absence of evidence that a barrier with that particular smell will be ineffective, and there was no such evidence, evidence of smell also is but a distraction in the sense I have already mentioned. 117 Some evidence was also given as to the observation of particle sizes greater than the 1.7 mm and 2.4 mm size range. That isolated particles may be of a greater size than this range is not necessarily inconsistent with the preponderance of size range noted by Golders in its analysis. It is important to recall that such of the glass particles that were undoubtedly those marketed as Termiglass which Golders came to analyse were truly random samples. Termicide by its staff did not contrive to supply atypical samples or request or cause Vision Glass so to do. It is true that not all that Granitgard's representatives took away was indeed Termiglass but this seems to have been the result of some human error or misunderstanding, including error or misunderstanding on the part of Granitgard's representatives. 118 Mr Toomer, who was, for about a year, a distributor and installer of Termiglass gave evidence that he inspected the Termiglass supplied to him over that period for variations and found none. I took that to mean particle size. His situation was such that, had there been an observable variation in product consistency I expect that he would have noticed this. Mr Toomer was independent of Termicide. I saw no other reason to doubt the accuracy of his evidence. 119 Of course this trade related inspection lacks the precision of the Golders and Cardno Bowler analytical results but it is consistent with them. It is also consistent with the performance in such of the laboratory tests of what was truly Termiglass as Dr Holt conducted at an 80 mm test depth (described below). Taken together, these indicate a general consistency and proportion of medium size glass particles in the Termiglass produced by Vision Glass. In those circumstances, too, evidence which was given about observations of small pieces of paper or rubber, especially after what seems to have followed a change in source glass leads nowhere unless its mere presence alters the properties of the barrier. I should have expected that the scientific witnesses, especially Dr Ewart and Dr Holt, to have remarked upon the presence and significance of such contaminants had they been present in the random samples of such actual Termiglass which they received. They did not. Further, neither Golders nor Cardno Bowler remarked in their reports on the presence of such contaminants in the samples of actual Termiglass particles which they analysed. Considering the evidence as a whole, my conclusion is that the presence of contaminants such as small pieces of rubber or paper is, at most, an isolated aberration of no significance. 120 In short then, I find that the product manufactured by Vision Glass and supplied to the market by Termicide as Termiglass for installation into its barrier system more likely than not has been and is what it is supposed to be. The product supplied as Termiglass does conform to the product as described in the CSIRO Appraisal. It is a crushed or "sintered" (which means much the same thing) glass product which is generally (in the order of 95%) between 1.7 mm and 2.4 mm in size. 121 Are then any of the representations allegedly made by Termicide concerning this product as installed false, misleading or deceptive as alleged? 122 There certainly are differences between the expert scientific witnesses on this subject. Some at least of the views which Dr Ewart and Dr Holt came to express concerning the efficacy of Termiglass were, for reasons already given, based on the false premise that the crushed glass product which they were testing was indeed Termiglass. 123 In the opinions he came to express both in 2004 and later, Dr French did not labour under the same handicap as to test product provenance. His knowledge of termites and the utility of particle barriers as a means of preventing their subterranean entry, which I detail below, is truly profound. Moreover, that knowledge extends, based on first hand experience even then as a then senior scientist, to the conception, inception and evolution of the use of particle barrier systems as a means of preventing subterranean entry of termites. His knowledge further extends, again based on first hand knowledge and experience, to the evolution of building code and standards requirements in response to this new type of system. An understanding of these matters is essential to an assessment of the efficacy of Termiglass as installed in Termicide's barrier system and thus to the resolution of the alleged contraventions of the Trade Practices Act. 124 In reflecting on the scientific evidence, including that given in cross examination, each of the factors which I have mentioned in the preceding paragraph proved, together with others I detail below, influential in persuading me that the definitive analysis is that offered by Dr French. His third and final affidavit, which greatly expanded on views earlier expressed and which was responsive to earlier affidavits from Drs Holt and Ewart, was of particular assistance. In his oral evidence Dr French adhered to the substance of the views he there expressed. The depth of Dr French's knowledge, as well at times, I thought, as the depth of his patience, was much on display in the course of a lengthy cross-examination. What follows draws extensively upon his analysis. It will be necessary to add some observations arising from the dispatch of samples of crushed glass to Dr Ahmed for testing. 125 I have already referred briefly to Dr French's background. It is desirable to describe that in much greater detail. 126 Dr French originally trained as a forester. He came to Australia from the United Kingdom in October 1963. He initially worked here as a forester. His later, post-graduate studies in relation to wood product insects and then, in depth, termites appear to have been an extension of his original training and interest. 127 In the mid 1960's Dr French started post graduate study at the University of New South Wales looking at wood product insects. He obtained his Master of Science degree in 1969. He then moved to the USA. There Dr French completed his Doctor of Philosophy Degree in Forest Entomology. 128 Dr French moved back to Australia in 1972 to work for the CSIRO as a Research Scientist in the Division of Forest Products. He retired from full time work with the CSIRO in December 1996. At that time he held the position of Senior Principal Research Scientist and Program Leader. 129 Dr French was an adjunct Professor at RMIT in Melbourne between 1996 and 2001 working in termite research. He formed Ecospan Consulting Service in 1996. Dr French moved to the Sunshine Coast in Queensland in 2001. He was appointed as an adjunct Professor at the University of the Sunshine Coast in the field of termite biology and control. 130 Since leaving the CSIRO Dr French has continued actively to be involved with research into termite issues. By way of example, over the last few years Dr French has been involved with Dr Ahmed in the design and installation of the "whole of house" project in the Northern Territory. This involves 86 mock up buildings of various types using a complete range of termite control measure such as physical and chemical barriers. Dr French believes this to be the largest field study of this type ever undertaken in Australia. It was not suggested otherwise in cross examination. 131 Dr French's role within the CSIRO was to head up the entomological group. This group's tasks included the study and treatment of termites and other wood pests. Within the CSIRO Dr French had discretion and freedom to pursue research within the field of entomology. He concentrated a large amount of his time on the study of termites and devising practical means to control and treat termite infestation. This reflected the large economic importance of that subject. During his career with the CSIRO he researched and experimented with a range of systems for the treatment or control of termites. These systems included termite barriers to prevent or deter infestation along with systems to treat or eliminate termites both before and after infestation. 132 Dr French has been a member of the International Research Group on Wood Protection (IRG) since the early 1980's. He has attended many annual meetings around the world representing CSIRO, always presenting scientific papers. Within the IRG he was Convenor of the Biology Group (Termites) for eight years. Dr French is a life member of the IRG. He continues to publish papers at their annual meetings. 133 I am satisfied that Dr French endeavoured to comply with this Court's guidelines in relation to the giving of expert evidence. 134 I have already mentioned the Hawaiian connection in relation to the development in Australia of termite barrier systems. The inspiration for that development came about in the following way. In 1987 one of Dr French's then CSIRO colleagues, who had just holidayed on Honolulu, handed to him a copy of a newspaper article she had seen in Hawaii. That article referred to research by Professor Minoru Tamashiro of the University of Hawaii which established that, in Hawaii, an effective termite physical barrier could be made using small pieces of basaltic gravel. 135 That particles might be used as a physical barrier against termites thereby caught Dr French's interest. At that time the most common form of termite barrier used in Australia to protect buildings and other structures was the chemical termite barrier provided by organochlorine pesticides applied by pest management professionals by spraying under and around structures. Although effective, the organochlorine chemicals had long term adverse environmental effects. They were in the process of being banned within the United States of America. Dr French realised that organochlorine pesticide would soon be banned in Australia as well. This made the development of an effective non-chemical termite barrier very important. 136 Soon afterwards, another of Dr French's then CSIRO colleagues, Dr Julius Beretka, a ceramicist, mentioned to him that Mawsons Quarries at Cohuna had a large pile of granite screenings under 5 mm in size. Mawsons produced granite aggregate for use in road base applications. Dr Beretka told Dr French that Mawsons could not use screenings under 5 mm in size because they were too small for road screenings. Dr French thought that it might be possible to construct a termite barrier using stone particles along the lines of the barrier discussed in the Hawaiian newspaper clipping. To this end, he contacted Mawsons and asked them to send him a sample of these granite screenings. He also contacted Pioneer Quarries, which operated a quarry operation near the CSIRO premises in Clayton, Melbourne. He asked Pioneer to supply him with a quantity of basalt aggregate. 137 Dr French then conducted some preliminary testing using both the granite and basalt aggregates. The preliminary testing satisfied him that it should be possible to create an effective termite barrier using appropriately sized particles made up of granite or basalt. This testing was though only of a preliminary nature. Dr French also knew that to confirm that a barrier would be effective as a commercially viable system significantly more testing would be required both in the laboratory and in the field. With this in mind, Dr French contacted Mawsons and gave them his preliminary conclusions. He asked Mawsons if that company would be prepared to fund the CSIRO to enable him to conduct a proper research program to develop and trial a new termite physical barrier system using appropriately sized stone particles. In particular, funding was needed to employ a research assistant so that Dr French could undertake much more extensive testing as part of a proper research program. 138 Mawsons agreed to provide funding to the CSIRO. As a scientist, Dr French was not involved in the commercial negotiations between the CSIRO, Mawsons and its subsidiary, Granitgard. 139 Using funding obtained from Mawsons, the CSIRO employed Mr Berhan Ahmed (as Dr Ahmed then was) as Dr French's Research Assistant for this project. One sees here the origins of a very lengthy collaborative association between these two gentlemen. Yet another irony in Granitgard's case, given his role also in the development of the product and system it now markets, was that it also sought to discredit the integrity of Dr Ahmed. 140 On 1 March 1990, in the course of his then employment with the CSIRO, Dr French came to author a letter (and attachments) to the Victorian Building Control Accreditation Authority. One attachment to that letter was an application for accreditation of the granite screenings which became known as Granitgard. The Australian Standard (which was AS1694-1974) for termite physical barriers which applied at that time made no provision for graded particle barriers because this type of barrier was not known in Australia when that standard was written. Because of this Dr French came to author the application to the Victorian Accreditation Authority for its approval so as to allow the barrier to be used commercially. 141 The attachments to the 1 March 1990 letter detailed the research undertaken by the CSIRO to establish that graded granite particulars were an effective termite physical barrier in Australian applications. In summary, the laboratory testing component of that research involved using plastic tubes filled with a layer of approximately 150 mm of crushed granite as the barrier material. Field testing was also undertaken. 142 In response, the Building Control Accreditation Authority came on 14 July 1990 to issue a Certificate of Accreditation. According to the Specification attached to the Certificate of Accreditation: The granite material should be fairly uniform in size, varying from 2.4 - 1.7 mm in diameter. The material should be clean with 100% passing the 2.4 mm sieve and 0 - 6% passing the 1.7 mm sieve. 143 The size range specified in the Certificate of Accreditation corresponded with the conclusions Dr French reached as a result of the research undertaken by him (Those conclusions and that research were set out in the Accreditation Application). The requirement that not more than 6% of the barrier material be less than 1.7 mm was consistent with Dr French's research (as detailed on page 8 of the Accreditation Application) from which had been derived as a preferred ratio that substrate not exceed more than 8% fines (the reference to "fines" meaning particles with a size less than the preferred minimum of 1.7 mm). One sees in this specification and the underlying research undertaken by Dr French at the CSIRO the origins of the "sufficient proportion" of later times. Further, its similarity with Termicide's specification in respect of Termiglass is no coincidence. 144 Dr French related and I accept that the occasion for the application for accreditation being made for granite particles within the size range 1.7 mm - 2.4 mm range was because Mawsons had provided the funding to the CSIRO to enable me to conduct the research program. Such particles were produced from the materials which Mawsons quarried. It was not that granite particles were the only particles suitable for installation into a barrier system. Dr French's preliminary testing had established that basalt particles could also be used as a termite physical barrier. At that time he believed that appropriately sized particles of stone material other than granite could also have been used to provide an effective termite physical barrier. He had formed this belief following his research and after reviewing overseas literature which referred to other materials such as sand and crushed coral as effective termite physical barriers. 145 Australian Standard 3660-1993 Protection of Buildings from Subterranean Termites - Prevention, Detection and Treatment of Infestation (the 1993 Standard) was published by Standards Australia in 1993. It which replaced a combination of early Standards, including AS1694 mentioned above. The 1993 Standard included graded granite barriers as a termite physical barrier for slab on ground construction (See table 1 on page 8). Appendix E to the 1993 Standard set out the detailed provisions relating to this type of barrier. Notably, Cl E2.1 set out the specifications for graded granite barriers with sub-cl (a) providing: Particle size - uniform in size, varying from 2.4 - 1.7 mm in diameter. Clean with 100% passing the 2.4 mm sieve and less than 10% passing through a 1.18 mm sieve. 146 The 1993 Standard replaced the Certificate of Accreditation issued by the Building Control Authority. 147 The particle size specification appearing in Appendix E to the 1993 Standard was more relaxed than the equivalent specification in the Certificate of Accreditation. Appendix E only required less than 10% of the particles to pass through a 1.18 mm sieve. The Certificate of Accreditation had required less than 6% to pass through a 1.7 mm sieve. Although he served upon the Standards Australia Committee that approved the 1993 Standard Dr French cannot now recall why this change was made to the particle size specification. 148 Under the 1993 Standard the minimum depth of the graded granite barrier was 150 mm. 149 The 1993 Standard was revised in 1995 - Australian Standard 3660.1-1995 Protection of Buildings from Subterranean Termites (the 1995 Standard). Part 1 of the 1995 Standard was directed to the subject of new buildings. Dr French was not a member of the Standards Australia Committee which issued the 1995 Standard. 150 The 1995 Standard allowed for monolithic concrete slabs to be used as part of a termite physical barrier system. This allowance took account of improvements to concrete slab construction which meant that a slab, if properly constructed, would operate as an effective barrier against termite infestation (although it would have to be supplemented to provide complete protection to the structure). The effect of this allowance was that a barrier system only had to be placed around the perimeter of the structure and around penetrations though the slab (such as plumbing). 151 Table 2.2 in the 1995 Standard referred to graded stone as a barrier system when used around the perimeter of concrete slabs. The 1995 Standard referred to graded stone barriers instead of graded granite (as was the case in the 1993 Standard). The terminology adopted thus contemplated that a particle barrier which conformed to AS3660 need not be confined to granite material. This change was consistent with the conclusions which Dr French had reached in his earlier research. 152 The detailed provisions for graded stone barriers in the 1995 Standard were set out in s 6. Clause 6.2.1 prescribed performance requirements which, materially, required that stone particulars: (a) be comprised of crushed igneous or metamorphic stone … (d) be graded and shaped so that: (i) a sufficient proportion of the particles are of such a size that the termite species occurring in that region cannot transport them; and (ii) the dimensions of the voids between the stone particles does not permit the penetration of foraging termites that occur in the region. The reference in these performance requirements to "sufficient proportion" will be noted. 153 Clause 6.2.2 of the 1995 Standard was directed to the subject of deemed-to-comply specification. This clause was specific to graded granite barriers (such as Granitgard). Materially, sub-clause (a) particle size was in the same terms as clause E2.1(a) in the 1993 Standard (set out above). 154 The 1995 Standard relaxed the depth requirement for graded stone barriers specifying a minimum depth of 75 mm. Figure 6.3(d) in the 1995 Standard showed graded stone being used in the cavity of a typical cavity brick construction. The graded stone was placed in the cavity to a depth of 75 mm and supported with termite strip shielding made up of termite resistant material in an inverted L-shape extending between the mortar on top of the lowest brick and running down the inside face of that brick. The depth of particles and the use of strip shielding are harbingers of what were later to become two key features of the Termicide termite barrier system. 155 Granitgard's termite barrier system has itself been the subject of CSIRO appraisal - CSIRO Technical Assessment 269 June 2000 Granitgard Physical Termite Barrier System (with penetration sleeve). Clause 1.1 in Technical Assessment 269 states that the barrier comprises stone material (which) ranges in size between 1.5 mm and 5 mm. When usedin a cavity of a cavity brick construction the Technical Assessment requirement is that "the compacted depth of the Granitgard to be not less than 75 mm". 156 Technical Assessment 269 refers to a number of documents in support of the Granitgard system. Dr French is referred to as the author or co-author of some of those publications. The latest in time of these is a letter from Dr French dated 26 March 1993. About this time, Dr French was still acting (through the CSIRO) as a consultant to Mawsons in relation to the Granitgard barrier system. Also around that time Dr French's health took a turn for the worse. Mawsons had made a request for further assistance. His then state of health was such that he was not in a position to provide that assistance. Dr French recommended Dr Ewart to Mawsons to act in his place. Dr French had supervised Dr Ewart's studies in the 1980's when Dr Ewart was completing his Doctor of Philosophy Degree. Dr Ewart subsequently became the Research and Development Manager for Granitgard. 157 Technical Assessment 269 for the Granitgard system refers to a particle size range of 1.5 mm - 5 mm. Dr French did not know why the Technical Assessment referred to this range. The underlying research which he had conducted had shown that the effective range for a particle barrier of this type comprised particles mainly in the range of 1.7 mm - 2.4 mm. 158 In 2000 a revision of the 1995 Standard resulted, materially, in its replacement with the 2000 Standard. Clause 2.3.3 of the 2000 Standard substantially restated cl 6.2.1(d) of the 1995 Standard. Clause 2.3.3 of the 2000 Standard referred to graded particle barriers. The change in terminology from graded stone barriers which appeared in the 1995 Standard to the broader graded particle barriers will be noted. On its face therefore the 2000 Standard presents as recognition that other types of particle might possibly be used as a component of an effective termite barrier. Section 7 in the 2000 Standard set out the "deemed to satisfy" requirements for graded stone particulars. Section 7 did not include a specific provision dealing with particle size range. Instead, cl 7.3.1 referred to the performance requirements of cl 2.3.3. In turn and in summary, sub-clauses 2.3.3(a), (b) and (c) specified that (a) the particles be termite resistant, and (b) must be graded and shaped so that they cannot be transported by foraging termites species occurring in the region; and (c) able to be placed in a manner so that the voids between particles do not permit penetration of foraging termite species occurring in the region. Clause 7.4.1 of the 2000 Standard required a minimum depth of 75 mm while cl 7.4.2 (dealing with perimeter applications) required a minimum compacted depth of 75 mm when used in wall cavity applications. 159 It was against this background that Dr French came in February 2004 to furnish advice to Termicide in relation to the possible use of crushed glass particles in a termite barrier system. The involvement came about in this way. 160 On 31 October 2003 Dr French was approached by Mr David Jeynes representing the Termicide. Mr Paul Jeynes is Mr David Jeynes' son. As stated earlier, the referral to Dr French came from Mr Schaffer. Mr David Jeynes informed Dr French that Termicide was interested in developing a new graded particle termite physical barrier using glass particles. He requested Dr French to review and assess the proposed material to determine whether it would be an effective termite physical barrier under the 2000 Standard. 161 Following this meeting with Mr David Jeynes Dr French prepared a protocol ("the Sintered Glass Protocol") to be applied to evaluate the proposed new barrier system. He forwarded the Sintered Glass Protocol to Mr David Jeynes on 5 November 2003 under cover of his letter of that date. 162 The Sintered Glass Protocol provided for a combination of laboratory and field testing of the proposed barrier material. Dr French intended that the field testing comprise test sites in the vicinity of Caloundra (near to where he by then resided) for testing in relation to the coptotermes species with further testing in the Northern Territory against the larger mastotermes darwiniensis species. The laboratory testing required a source of live termites plus climate controlled facilities. It was always Dr French's intention that the laboratory testing be carried out by Dr Ahmed, who was by then a Research Fellow within the Institute of Land and Food Resources within the University of Melbourne. Dr Ahmed had access to an insectary or climate controlled facilities. 163 Dr Ahmed, it will be recalled had originally been engaged as Dr French's research assistant within the CSIRO when Dr French embarked upon the research program which led to the accreditation for Granitgard. Subsequently, Dr Ahmed had obtained a Doctor of Philosophy degree in the field of termite biology, physiology and control. Dr French was Dr Ahmed's major supervisor for his doctoral studies. Dr French's supervision of the doctoral studies of both Dr Ewart and Dr Ahmed are but one indicator of his long standing eminence in the study of termites and termite control measures. 164 After Dr French prepared and submitted the Sintered Glass Protocol, Termicide provided him with a sample of glass particle materials so that he could evaluate the material for use in a termite physical barrier system. To that end, Dr French forwarded a quantity of the glass particle material to Dr Ahmed for the laboratory testing. After receiving that material Dr Ahmed telephoned Dr French and advised him that the tests had failed and that he had sieved the material and found that it had a very broad particle size range extending well beyond the medium range of 1.7 mm - 2.4 mm. 165 Dr French in turn contacted Termicide and requested a sample of the glass material within the medium range. By a letter dated 19 December 2003, Mr Paul Jeynes notified Dr French on behalf of Termicide that the glass material with which Termicide had previously provided him was an incorrect sample (raw material without quality control). Termicide then provided Dr French with another sample of glass particle material (the Second Sample). 166 A quantity of glass material from the Second Sample was forwarded to Dr Ahmed for laboratory testing. After receiving the glass material from the Second Sample Dr Ahmed telephoned Dr French. He told him that he had conducted a sieve test on the Second Sample and had confirmed that it was within the medium range. Dr French also spoke with Dr Ahmed about modifying the laboratory testing from the proposal set out in the Sintered Glass Protocol. In particular the Sintered Glass Protocol had proposed using plastic containers of a similar description to the plastic containers which Dr French had used to test the graded granite particles. Such containers are described in the accreditation application and mentioned above in an article which Dr French published in the journal Sociobiology in 2003. The Sintered Glass Protocol also required the termites to penetrate through a layer of approximately 150 mm of the glass material. After discussion concerning these matters, Dr French and Dr Ahmed decided to substitute glass jars for the plastic containers and to use an 80 mm layer of the glass material. The reduced depth of the glass material was intended to make the test more rigorous. The selection of an 80 mm test depth also accorded with a depth which Dr French had used in earlier field testing which he conducted. 167 Having conducted the laboratory testing in accordance with the Sintered Glass Protocol as revised Dr Ahmed provided the results to Dr French for inclusion in his report to Termicide. These results were collated and sent by Dr Ahmed in the form of a document Laboratory Evaluation of Sintered Glass Screenings as Potential Physical Barrier against the Subterranean Termite, Coptotermes acinaciformis (Froggatt) and Mastotermes Darwiniensis Froggatt. 168 Dr French carried out the field testing of the glass particles. Here, too, the initial supply of incorrect glass particles by Termicide required the replacement of the initial field tests. Dr French recorded the results of the field testing in his report to Termicide. 169 In summary, the laboratory testing carried out by Dr Ahmed involved testing three different particles size ranges (fines, being less than 1mm; medium, being between 1.7 - 2.4 mm; and coarse, being greater than 2.4mm) as well as a medium size containing 5% fines ("the 5% fine mix"). Dr French's previous research and experience (and in particular his involvement with the development of the Granitgard barrier system) had already led him to believe that the effective range was likely to be the medium range of 1.7 mm - 2.4 mm. Nevertheless he believed that it was appropriate to test the new material for the fine and coarse sizes as well. 170 The upshot of the laboratory testing, as recorded in Dr French's report in February 2004 was that coptotermes termites were not able to penetrate the medium range glass material and the 5% fine mix glass material. In addition, these termites were not able to penetrate the glass material in the medium range which Dr French used his field testing. Dr French did not field test the fine or coarse size particles. 171 Again as recorded in Dr French's February 2004 report, the medium range glass material was not an effective barrier to the mastotermes darwiniensis termite. I accept Dr French's opinion that the reason for this is that these termites are much larger and can move particle sizes within the medium range. As its species name suggests, mastotermes darwiniensi is found in the Northern Territory. A consequence of the laboratory test results in respect of this species was that no field testing of the proposed glass particle termite barrier system was undertaken in the Northern Territory. 172 Axiomatically, the glass particles upon which Dr French reported favourably in February 2004 were not "Termiglass" but that was only because that trade name was only given to such particles by Termicide after the receipt of that report and the supply to the market of the barrier system which incorporated such particles. 173 Granitgard challenged the adequacy of the testing which underpinned Dr French's February 2004 report. More particularly, Granitgard suggested that the tests conducted by each of Dr French and Dr Ahmed did not comply with the requirements of Pt 3 of the 2000 Standard, which deals with the assessment criteria to be applied 174 Dr French's opinion was that the testing discussed in his February 2004 report was sufficient to support his conclusion that the glass material in the medium range was an effective physical barrier against subterranean termites in accordance with the 2000 Standard (although it would not be effective in tropical Australia due to the presence of the larger mastotermes darwiniensis). 175 I accept that Dr French was familiar with the requirements of Pt 3 of the 2000 Standard. So, too, I am quite sure, was Dr Ahmed. It was put to each of them on behalf of Granitgard that they had not complied with the requirements of Pt 3 of the 2000 Standard because none of the laboratory tests which had been conducted by Dr Ahmed had been of eight weeks duration. Paragraph 2.4.5 of Pt 3 of the 2000 Standard was said to be the foundation for this requirement. On reflection, I found this a curious position for Granitgard to advance as neither Dr Holt (34 days in April/May 2008) nor Dr Ewart (28 days) adopted a laboratory test period of this length. It was very evident in cross examination that each of Dr French and Dr Ahmed was perplexed by the proposition that laboratory testing had to be of eight weeks duration to be compliant with the Standard. And these two gentlemen were the authors, along with an "A Trajsman" of a submission to Standards Australia in 1995 (inferentially while employed by the CSIRO) in relation to laboratory and field evaluation of granite particles as a physical barrier against subterranean termites which Pt 3 of the 2000 Standard listed (in Appendix D) in an informative way for further reading. 176 Paragraph 2.4.5 of Pt 3 of the 2000 Standard states: 2.4.5. Experimental design Experimental design includes the selection of container size, group size and composition, number of colonies, matrix, moisture content of the matrix, experimental and reference controls, replication, exposure period and assessment criteria. Where group size and exposure period are variable (depending on the system), termites from three colonies shall be used to take account of variations in vigour between colonies. Assessments of termite resistance to cellulosic and non-cellulosic materials shall be conducted with groups of no less than 10 g of termites and run for no less than 8 weeks. [Emphasis added] The proposition put to Dr French and to Dr Ahmed as to a need for testing for 8 weeks was based on a misreading of this paragraph of the 2000 Standard, particularly the emphasised words "Assessments of termite resistance to cellulosic and non-cellulosic materials". It was also based on a misunderstanding of what was being tested. No one has ever been concerned to test whether termites can remain viable when exposed to crushed glass or whether it is a food source for them. The last sentence of para 2.4.5 is directed to such matters. As Dr French stated, termites cannot eat glass. 177 Section 6 of Pt 3 of the 2000 Standard, which provides (para 6.2) that it is to be read in conjunction with section 2, is directed in more detail to the subject of "Resistant Materials". It covers cellulosic and non-cellulosic materials. 178 What plainly perplexed Dr Ahmed when under cross-examination was that he was testing a physical barrier's resistance to termite penetration. It was apparent in his oral evidence that Dr Ahmed's first language was not English and that, while he had a good command of it, that command was not perfect. His command of the written word was though more than sufficiently good to appreciate that the 8 week period in para 2.4.5 of Pt 3 of the 2000 Standard had no application to tests of the kind which he undertook as part of his collaboration with Dr French. 179 Though Mr Meadows' views cannot, of course, govern the meaning of that Standard, I did note that he considered that the field and laboratory tests which Dr French and Dr Ahmed had conducted complied with the 2000 Standard. If nothing else, that confirms that their understanding of the meaning of the 2000 Standard was not idiosyncratic. 180 Another submission made by Granitgard in relation to the tests which Dr Ahmed undertook at Dr French's request, the results of which were incorporated into Dr French's February 2004 report was that he could not possibly have conducted the number of jar tests that he claimed having regard to the amount of glass particle material sent to him. Much time, particularly in the cross examination of Dr Ahmed, was devoted to this subject. A difficulty with the submission is that there is no dispatch record in relation to the precise weight of glass particles sent to Dr Ahmed or of date or dates of dispatch. All that remained was the frailty of recollection in respect of a subject of no moment at the time. The subject of moment at the time was the testing and Dr Ahmed did keep his bioassay test sheet notes. 181 What is tolerably clear, having regard to the evidence of Dr French, Dr Ahmed and Mr Paul Jeynes, is that there was an error by Termicide being what was initially sent for testing. It is also tolerably clear that Dr Ahmed received a second consignment. Dr Ahmed stated that he sieved or caused to be sieved this consignment into three sizes - less than 1.7 mm, between 1.7 mm and 2.4 mm and greater than 2.4 mm. This was unsurprising as both he and Dr French wanted the properties of fine, medium and coarse crushed glass particles tested as candidates for installation in a particle barrier. It was said that this meant that "Termiglass" was not tested; but there was then no such product known as "Termiglass". That was the name assigned to the predominantly medium particle product after Termicide received the February 2004 report from Ecospan Consulting Services. 182 I see no reason to doubt that Dr Ahmed conducted the tests upon which he reported to Dr French for the purpose of that report. The alternative, in effect, was that Dr Ahmed either alone or in conjunction with Dr French was guilty of scientific fraud. So much was a theme in their cross examination. The evidence does not warrant the making of such a serious finding. It does not withstand objective scrutiny. Neither is it consistent with my observation of each of them in giving their oral evidence. I thought each of them was an honest and learned man. Quite why one or perhaps two of the very few scientists in Australia with relevant expertise would engage in that conduct either to assist or to deceive Termicide, especially knowing that their advice had been sought in the context of a proposal to market a glass particle physical barrier, continues to elude me. 183 There was also some suggestion to Dr Ahmed in the course of his cross examination that his termite collection methods were not appropriate. It was apparent to me from his answers that he was highly experienced in collection and well aware of the need to collect termites which would have the necessary vitality for meaningful laboratory testing. I reject any suggestion that the results of his testing (and therefore opinions of Dr French which draw upon the reports of that testing) should be discounted because of unsuitable collection methods. 184 At the request of Termicide's solicitors Dr French re-inspected in 2008 the field test units of the glass material which he had installed for the purposes of first reporting to Termicide. On one such re-inspection he found that the units which he had installed in a forest at Bells Creek, which is near Caloundra, were no longer in existence. This appears to be the result of forestry operations in the area and contrary to advice originally given to Dr French as to the future conduct of such operations in that area. 185 Dr French's Nambour field test site was intact in 2008. In both February and September that year he observed that none of the units containing glass material at that site had been penetrated by termites. He also observed that the control unit (containing sand only) had been penetrated. These reinspections confirmed Dr French's opinion that the glass material within the medium range is an effective termite physical barrier. I also found the absence of penetration of the Nambour field test particles after some 4 years of installation a highly persuasive indicator of the efficacy of Termiglass as installed in the Termicide barrier system in preventing subterranean termite entry. Especially that was so in light of other evidence of Dr French, which I accept, that, if laboratory penetration of candidate barrier material by termites is to occur, it will usually occur quite quickly (within 48 to 72 hours). Dr Ahmed's evidence was to like effect on this subject. It was also a highly persuasive indicator in light of other evidence, which I accept, that, as installed in building applications any failure in a particle barrier system to prevent subterranean termite entry is likely to become evident after about twelve months. 186 As to these field tests was a difference of opinion between scientific experts with respect to the aptness of the placement of the test units by Dr French in aboveground mounds of coptotermes lacteus as described by him in his report of February 2004. He stated that he positioned the test units in the mounds to maximise the likelihood of termites entering the test units and encountering the barrier material. As to his choice of Coptotermes lacteus, as opposed to coptotermes acinaciformis, Dr French stated: I selected C.lacteus as they are a wood feeding termite which are very similar in size to Coptotermes acinaciformis (the termite used in the laboratory tests by Dr Ahmed and Dr Holt). The size of the termite, particularly the head width, (C. acinaciformis 1.15 - 0.80mm; C.lacteus 1.35 - 1.05mm [as to which Dr French refers to a paper "Laboratory and Field Evaluation of Granite Aggregate as a Physical Barrier Against Subterranean Termites of the Genus coptotermes SPP", published in 2003] is a critical factor in testing of a particle barrier as different seized termites require different sized particles. 187 Dr French expressed the opinion that coptotermes lacteus was an appropriate choice for the field testing component which he undertook for the purposes of his 2004 report. Dr Ewart differed as to the appropriateness of this choice of coptotermes species. He acknowledged in his oral evidence that coptotermes lacteus is roughly the same size and strength as coptotermes acinaciformis. I note also that in the Granitgard Protocol (s 3, page 5), Dr Ewart allows for the use of both coptotermes lacteus and coptotermes acinaciformis for evaluation purposes. 188 Dr French did not choose coptotermes lacteus, as opposed to coptotermes acinaciformis, because he was oblivious to the threat which the latter species presented. To the contrary, and as he stated in evidence, he accepted that coptotermes acinaciformis was an economically important species in South East Queensland. Dr French's use of coptotermes lacteus allowed him, because of his knowledge and experience of that species and of coptotermes acinaciformis, to reach conclusions as to the likely efficacy of the medium particles barrier against the termite threat in South East Queensland. Dr French's knowledge and experience was such, in my opinion, that it allowed him validly to utilise coptotermes lacteus in this way. To be remembered also is that the reference to coptotermes acinaciformis in the 2000 Standard is in a part which is not mandatory but for guidance. 189 For completeness, I should also record that Mr Meadows, whom I thought well qualified by formal training and lengthy experience to voice the opinion, who admitted that he had been initially sceptical about the usefulness of coptotermes lacteus for testing, acknowledged that it was appropriate to use this species, especially having regard to the high stress to which a candidate barrier was subjected in testing. 190 As already mentioned, both before and after the commencement of proceedings other scientists came to test the efficacy of what they at least thought was or thought was what became Termiglass. The worth of their opinions is necessarily limited to the extent of the uncertain provenance of the material which they came to test. 191 That limitation does not arise in respect of material tested by Dr Holt in the April/May 2008 period. The material received by Dr Holt for the purposes of that testing came from Termicide .I am satisfied that this material was indeed the Termiglass as supplied to the market by Termicide for installation in its barrier system. 192 In April 2008, with Dr French observing, Dr Holt set up tests of the Termiglass. During the setting up process Dr French suggested to Dr Holt that the Termiglass in the test jars be placed with a depth of 80 mm. Dr Holt agreed with this suggestion. The occasion for Dr French's making of this suggestion was his belief that a depth of 80 mm was appropriate because: (a) The 2000 Standard required a minimum depth of 75 mm compacted (or tamped). Though the material in the test jars was not compacted Dr French believed, based on his very considerable experience, that 80 mm of uncompacted material corresponded with 75 mm of compacted material; and (b) The 2004 testing undertaken and reported upon in 2004 had used an 80 mm uncompacted depth. Dr French believed it was appropriate that Dr Holt's testing be conducted on the same basis so that the results could be compared on a like with like basis. 193 For reasons which I detail below, I accept that a test of a candidate material at an 80 mm uncompacted depth gives a reliable indication of its likely performance if installed in a barrier system to a compacted depth of 75 mm. Results obtained using lesser test depths can be apt to mislead. Dr French's test depth suggestion and Dr Holt's acceptance of that suggestion were each appropriate. 194 Dr Holt observed, measured the results of and then disassembled or "took down" his tests on 12 May 2008. Dr French, who was present, made his own, separate observations and measurements. There was no disagreement between Dr French and Dr Holt that each of the control jars had been penetrated by the termites. Each also observed tunnelling into the Termiglass in the other test jars. Each agreed that, in none of these, had a penetration of the replicate barrier occurred. Their respective measurements as to the degree of penetration differ somewhat. The table below, prepared by Dr French, summarises their respective measurements: Results of 80mm testing by Dr Holt TG1(1) TG1(2) TG(3) TG1(4) TG1(5) Holt 15 25 15 20 15 French 15 15 20 30 10

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Judgment (17 paragraphs)

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Cases Cited (12)

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