The orders sought in paragraph 3 of the principal motion
82 Paragraph 3 of the principal motion seeks, in the alternative, orders in the following terms:
That each of the First Respondent, Second Respondent and Third Respondent be restrained until further order of the Court from making or publishing any statement to any person directly or indirectly involved in the manufacture, specification, supply or acquisition of furniture or textiles that is inconsistent with:
(a) Any matter set out in paragraphs 17B and 18 of the Second Further Amended Statement of Claim, or alternatively
(b) Any matter set out in:
(i) Standard No 28-2006: Furniture and Fittings as published by the Third Respondent (the GECA Furniture Standard); and
(ii) The following Green Building Council of Australia publications to the extent to which the matter relates to the calculation of the product score towards a Green Star rating of products within categories 2.1, 2.2, 2.6 and 2.7 of the GECA Furniture Standard which have been certified as being compliant with that Standard:
(1) The pages of information which make up the Green Building Council of Australia's website and which respectively have the following web addresses -
(A) http:/www.gbca.org.au/green-star/rating-tools/
(B) http://www.gbca.org.au/green-star/rating-tools/green-star-office-interiors-v1-1/1530.htm
(C) http://www.gbca.org.au/green-star/technical-clarifications-cir-sulings/material-calculator-guide/2287.htm
(D) http://www.gbca.org.au/green-star/technical-clarifications-cir-rulings/technical-clarifications/1734.htm
(E) http://www.gbca.org.au/green-star/technical-clarifications-cir-rulings/credit-interpretation-request/1735.htm
(F) http://www.gbca.org.au/uploads/204/972/Technical20and20CIR2020091016.xls, but limited to the information contained under the worksheets respectively named "Definitions" and "Mat".
(2) green star Office Interiors v1.1 Technical Manual.
(3) green star Material Calculator Guide Version 3 October 2009.
83 The proposed order relates to conduct referable to the Corporate Express claim and the EPD claim.
84 Before dealing with the evidence that is relied on to support the granting of either of these injunctions I should record the parties' contentions as to how, in presently relevant respects, the GECA Furniture Standard is to be interpreted.
85 As I presently understand the matter, the respondents do not contend that sections 3.2 and 3.2.3 of the GECA Furniture Standard have a meaning which differs from that put forward by Instyle, except in perhaps two respects. The parties appear to accept that section 3.2 dealing with Material Requirements only applies to each type of material contained in the finished product that contributes 10% or more to the weight of the product. Thus where the material contributes less than 10% to the weight of the product, the specific requirements of section 3.2 do not apply to that material. It is convenient to refer to this as the 10% exemption. Where the material is fabric and comprises more than 10% of the total weight, it must be certified as stated in section 3.2.3 or satisfy the requirements of the GECA Textiles Standard. The two respects in which there might be disagreement between the parties are the meaning in section 3.2.3 of the words "certified by the Good Environmental Choice Label" and the meaning in the same section of the words "satisfy the requirements" of the GECA Textiles Standard. It is not necessary to detail or dwell on these possible disagreements because, at least in relation to the EXP chairs, there is no dispute about the fact that the fabric component in those chairs would contribute less than 10% to the weight of the product. Therefore the 10% exemption would apply. The respondents contend, however, that this does not mean that an assessment of the fabric is removed from all consideration when certification under the GECA Furniture Standard is sought in respect of a finished product (as distinct from certification of an unfinished product as white furniture). The respondents contend that when certification is sought in respect of a finished product then all components of the finished product must comply with the other sections of the GECA Furniture Standard, even though section 3.2 (and thus, in the case of fabric, section 3.2.3) does not apply because of the 10% exemption.
86 In the present case the respondents contend that Corporate Express was seeking certification of its EXP chairs as a finished product (and not as white furniture as Instyle contends). Even though the 10% exemption would apply in respect of those chairs, the respondents contend that it would still be necessary for all components (including the fabric) to comply with section 3.1 (Fitness for Purpose), section 3.3 (Hazardous Materials) and section 3.4 (Part Consumption Recycling and Labelling). The respondents contend that it would also be necessary for Corporate Express to comply with sections 4 and 5 relating to various "regulations". Moreover the respondents contend that compliance is not a matter of self-assessment. Rather, section 6.1 of the standard mandates independent assessment by an approved assessor which, in this case, could only be GECS acting through its employees or contractors.
87 Whether these contentions are correct will be a matter for the final hearing. It is sufficient for the present purposes to note that there are differences between the respondents' interpretation of the GECA Furniture Standard and Instyle's interpretation of the standard as pleaded in paragraph 17B of the 2FASC.
88 The following differences, at least, emerge. First, paragraph 17B(b) of the 2FASC pleads that any textile contributing less than 10% by weight can be used to upholster furniture certified under the GECA Furniture Standard, provided that the textile conforms with the requirements of section 3.3 of that standard relating to Hazardous Materials. As will appear from the discussion above, the respondents contend that the textile component and the applicant for certification must comply with all sections of the standard, save only for section 3.2 when the 10% exemption applies.
89 Secondly, paragraph 17B(c) of the 2FASC pleads that any textile can be used to upholster furniture certified under the GECA Furniture Standard even if it contributes more than 10% by weight provided that the textile conforms with the requirements of section 3.3 of the GECA Furniture standard and satisfies the requirements of the GECA Textile Standard. The respondents contend that, in this instance, the textile component, and the applicant for certification, must comply with all sections of the GECA Furniture Standard. It is not clear whether the respondents accept that satisfaction of the requirements of the GECA Textiles Standard with respect to a particular fabric results in the fabric complying with all sections of the GECA Furniture Standard as they relate to that component. There is some suggestion in the evidence that GECS holds the view that satisfaction of the requirements of the GECA Textiles Standard would result in the fabric complying with section 3.3 of the GECA Furniture Standard. As I understand their position, the respondents also contend that the question whether a textile "satisfies" the requirements of the GECA Textiles Standard, within the meaning of section 3.2.3 of the GECA Furniture Standard, is one to be determined by GECS. In other words, that question is not one to be determined by self-assessment or by an unapproved third party. Instyle appears to contend otherwise.
90 A third possible difference emerges. The respondents submitted that paragraph 17B(a) of the 2FASC suggests that there is a statement in the GECA Furniture Standard to the effect that any textile can be used to upholster GECA certified white furniture. They submit that there is no such statement in the standard. I do not understand Instyle to be contending that there is any such statement. I would not necessarily read paragraph 17B(a) in the way that the respondents have read it. I suspect that there is really no dispute between the parties on that particular issue.
91 I now return to the evidence.
92 Instyle relied on an affidavit sworn on 30 September 2009 by its solicitor, Mark Anthony Fraser, in which evidence to the following effect was given on information and belief. Mr Haigh was identified as the source of this evidence:
(a) Corporate Express applied to GECS to have its EXP chairs certified as being compliant with the GECA Furniture Standard as white furniture.
(b) Corporate Express wished to have its EXP chairs certified as white furniture so that it had the flexibility of being able to upholster those chairs using any fabric that its customers may desire to use.
(c) Instyle was at the time of the application referred to in paragraph (a) Corporate Express' preferred supplier of fabrics.
(d) GECS requested Corporate Express to provide evidence that Instyle's LIFE Textiles range of fabrics complied with the requirements of section 3.3 of the GECA Furniture Standard.
(e) Corporate Express requested Instyle to provide this evidence.
(f) Instyle supplied a letter dated 24 February 2009 to Corporate Express in which it declared that its LIFE Textiles range of fabrics complied with the requirements of section 3.3 of the GECA Furniture Standard.
(g) Corporate Express supplied Instyle's letter dated 24 February 2009 to GECS.
(h) GECS did not request either from Corporate Express or from Instyle alternative or additional evidence of the compliance of the fabrics with section 3.3 of the GECA Furniture Standard.
(i) On or about 2 April 2009, Corporate Express sent an email to GECS requesting advice as to what additional information and documents Corporate Express had to supply in order to achieve certification.
(j) On or about 2 April 2009, Mr Johnson and Mr Haigh held a telephone discussion in which statements to the following effect were made:
(i) Mr Johnson advised that the only outstanding requirement related to fabric to be used in upholstering the EXP chairs.
(ii) Mr Johnson advised that Corporate Express could only have its EXP chairs certified as white furniture if Corporate Express agreed to only use textiles certified as being compliant with the GECA Textiles Standard.
(iii) Mr Johnson also advised that it was necessary for fabrics to comply with section 3.3 of the GECA Furniture Standard and that the only practical option for demonstrating compliance was to use a textile certified as being compliant with the GECA Textiles Standard.
(k) Mr Haigh understood from this telephone discussion that Corporate Express' only real option in upholstering its EXP chairs was to use a textile that had been certified as complying with the GECA Textiles Standard.
93 The respondents answered this hearsay evidence in kind by an affidavit sworn on 26 November 2009 by Tamara Young, a solicitor at DLA Phillips Fox, who are the solicitors for GECA. In this regard Ms Young also identified Mr Haigh as the source of her evidence. Her evidence was to the following effect:
(a) When the application by Corporate Express for certification was first submitted, Mr Haigh had been working at Corporate Express for only a short period, although he had previously worked at Staples, which is the head company of Corporate Express. He "picked up" the GECA application for the EXP chairs from his predecessor.
(b) The main reasons for Corporate Express seeking GECA certification of its EXP chairs were as follows:
(i) Corporate Express is the third largest corporate furniture supplier in the industry, and Corporate Express had been asked on a number of its larger projects to have GECA certification of its furniture.
(ii) Corporate Express has been on the environmentally friendly pathway for around 10 years and GECA certification was in line with Corporate Express' history of getting ahead in having environmental products.
(c) The concept of obtaining GECA certification for white furniture was not something that Corporate Express was interested in as:
(i) Corporate Express sells finished furniture and wanted to market that finished product as being GECA certified; and
(ii) if Corporate Express was only to get white furniture certified, and then allow fabrics such as leather, vinyl or plastic on it, then all of the good work that Corporate Express had done to get environmentally preferable products would go out the window.
(d) There are two main ways that Corporate Express receives orders for its chairs, namely:
(i) from specifiers, for example, government departments, who specify fabrics that they require on their furniture, or
(ii) through the Corporate Express catalogue (which includes the EXP chairs). Purchasers of chairs from the catalogue are given a set range of fabrics from which to choose.
(e) Mr Haigh did not want Corporate Express to market its chairs as a GECA certified frame with uncertified fabric because it was not consistent with Corporate Express' environmental initiatives and the fact that it has built up a reputation as being ethical. Corporate Express did not want to risk damaging that reputation.
(f) During the certification process in 2009, Mr Haigh had a copy of the GECA Furniture Standard and questioned GECS as to whether the 10% exemption by weight criterion in relation to fabrics (section 3.2.3) would apply. Mr Haigh was advised by GECS that:
(i) Corporate Express would still need to prove that the textile to be used did not have hazardous materials and complied with section 3.3 of the GECA Furniture Standard; and
(ii) in order to satisfy section 3.3, Corporate Express would need to either:
- provide material safety data sheets for the textile; or
-ensure the textile was certified under the GECA Textiles Standard.
(g) Mr Haigh asked Instyle to provide him with material safety data sheets. He was told that it is extremely rare to have material data safety sheets for fabric because it is a finished product. Mr Haigh then told Instyle that if it could not get material data safety sheets, it would need to get its fabric certified under the GECA Textiles Standard.
(h) As Instyle had confirmed that it could not provide material safety data sheets, and its fabrics were not certified, Mr Haigh sent an email to Michael Fitzsimons, Managing Director of Instyle, confirming that Corporate Express was unable to use Instyle's fabrics on the EXP chairs and retain GECA certification.
94 Ms Young also deposed to a conversation she had with Mr Haigh on 24 November 2009. She deposed to the questions she asked Mr Haigh and the effect of his responses, as follows:
(a) Did Corporate Express apply to GECS to have its [EXP chairs] certified as compliant with the GECA Furniture Standard as white furniture?
"The Short [sic] answer is 'No'. There was nothing on the GECA Application Form to specify [white furniture]. Corporate Express applied for certification of its Chairs."
(b) Did Corporate Express wish to have its [EXP chairs] certified as white furniture so that it had the flexibility of being able to upholster those chairs using any fabric which its customers may desire to use?
"In the event that the 10% by weight argument was acceptable to GECA/GECS, then this would have been something that I would have considered. As the GECA certification hinged on the Hazardous Materials requirement, then [white furniture] is a side issue, because it was necessary to use certified textiles.
I wanted to make sure that we had a complete GECA certified chair. We only sell complete chairs. If I have any item on it which infringes certification, then I would not want this. It would be like buying a car without wheels.
At the time of the application, I did not even know what [white furniture] was in the context of the application for GECA certification."
95 It is readily apparent that there are material differences in the information provided by Mr Haigh to Mr Fraser, as deposed to by Mr Fraser, and the information provided by Mr Haigh to Ms Young, as deposed to by Ms Young, including the nature of the Corporate Express application for certification and Corporate Express' objectives in seeking certification. Plainly it is not my task to resolve these differences in the present application, even if the evidence were in a form that would permit me to do so (which it is not). It is sufficient for me to say that, on this body of evidence, I am left in some considerable uncertainty as to the nature of Corporate Express' application for certification and what information passed between Mr Haigh and Mr Johnson in their conversations.
96 The email of 3 April 2009 from Mr Johnson to Mr Haigh is in evidence. It responded to an earlier (undated) email from Mr Haigh to Mr Johnson dealing with various matters. Relevantly, Mr Haigh's earlier email to Mr Johnson said this:
Following our discussions regarding fabrics, please will you detail for me the requirements for textiles as I have clearly misunderstood the process. From my understanding section 3.2.3 in the GECA 28-2006 Furniture and Fittings standards states that:-
"All fabric comprising more that 10% of the total weight of the product must be certified by the Good Environmental Choice Label, the EU Flower label or the Nordic Swan label, or satisfy the requirements of Standard No. 19: Textiles".
The inference here is that textiles used that are below 10% weight don't require certification, or the requirement to meet the Standard 19: Textiles. As the textiles weight used in the chairs is well below the 10% I would (having read the standard) expect that textiles could be sourced from any textile vendor, however our conversation last night suggested otherwise. In order to ensure that the certification process is not held up, I will commit to using Macquarie textiles on the EXP Green chairs in the first instance, however as we also use Laines and Instyle I am keen to understand what is required in order that their textiles can be used on our chairs.
97 Mr Johnson's email response on 3 April 2009 was, relevantly, as follows:
The 10% exemption by weight criterion does not apply to adhesives or textiles under this standard, as they are both always under 10% by weight and that they have always been treated as a primary environmental improvement benchmark assessment.
In correspondence with GECA, the standards provider at the early commencement of this standard in 2007 the declaration was confirmed that it was not the intention of this exemption to apply to any component that is specifically listed in the rest of the standard. This means that all materials listed in the product standard are not to be exemption under this criterion. The intention of this exemption was to allow non assessment of some standard material used in this industry such as underlay, steel sheeting, handles and smaller fittings.
The requirement for the use of a compliant textile product has been a standard requirement for seating products since the early days of this standard and has been the basis of assessment for all certified manufacturers. While manufacturers are able to have their product certified as white furniture, such a certification does not allow them to earn full points under the GBCA Green Star framework. Such sales are allowed under the licence, but the licence cannot be provided as evidence of compliance to the Environmental Choice Australia Mark when such sales are made. In such instances we also request that the standard textile covering used on the furniture offered to the market is a compliant textile.
Please review the current certified textiles at:
http://www.geca.org.au/productsregister.htm
We would be happy to consider your current primary textile supplier however an assessment would need to proceed against the current textile standard. I have attached this standard for your review.
98 The above quotations are in the precise terms used by the authors. I have not sought to identify or highlight what might be regarded as errors or infelicities or obscurities of language in these communications. The "correspondence with GECA" at "the early commencement" of the standard to which Mr Johnson referred in his email is not in evidence.
99 I must confess to having difficulty in understanding what Mr Johnson was saying in parts of the above quotation from his email. The opening words of the quotation do, however, contain the statement that the 10% exemption does not apply to textiles. There is little doubt that Mr Johnson was responding to Mr Haigh's specific question with respect to section 3.2.3 of the GECA Furniture Standard. Mr Johnson's statement does seem at odds with the plain words of section 3.2.3 and also of section 3.2 of the standard. It also seems at odds with the respondents' acceptance in submissions that if the fabric is less than 10% of the total weight of the product then it is exempted from the requirements of section 3.2 of the standard. In this connection Instyle also pointed out that the respondents had specifically pleaded in their defence that Instyle's fabric, being less than 10% (by weight) of the EXP chairs, did not need to comply with section 3.2 of the GECA Furniture Standard: see paragraph 25.2.2 of the defence filed by GECS and Mr Johnson on 16 September 2009 and paragraph 25.2.1 of the defence filed by GECA on 15 September 2009.
100 Before passing from the email, Mr Johnson's statement to the effect that certification under the standard of a product as white furniture does not allow the product to earn full points under "the Green Star Rating framework", raises another matter that is contentious. On 17 August 2009 Mr Johnson's statement was put, in terms, to GBCA in an email from Tracy Mak, Instyle's Environmental Manager, with a request that GBCA advise whether the statement was true. Instyle received advice from GBCA to the effect that, where 90% or more (by mass) of the components of a product can be categorised as "Environmentally Innovative", the whole product can be so categorised in the calculator used to determine Green Star rating points and any non-compliant components can be disregarded. The effect would be to allow full rating points to be achieved, contrary to Mr Johnson's statement. It seems, however, that GBCA's advice was based on a "technical clarification" that, as at 28 August 2009, had been issued only "very recently" and was still not in the public domain. The evidence does not reveal what the position was as at 3 April 2009 when Mr Johnson sent his email to Mr Haigh. On the present evidence it seems most unlikely that this "technical clarification" was in effect. I am certainly not prepared to find that it was in effect.
101 In paragraph 20 of his affidavit Mr Fraser identified copies of documents which he said "evidence further possible breaches of the Trade Practices Act 1974 and of the Fair Trading Act 1987 by one or more of the Respondents". I should say at the outset that, although objection was not taken to the tender of this evidence, it seems to be of doubtful relevance to the claims as they are now pleaded in the 2FASC. The general thrust of this evidence is that persons seeking certification under the GECA Furniture Standard of a chair product were informed that it was necessary to use a GECA approved or certified fabric or leather. Because of the hearsay nature of the evidence (in some cases, remote hearsay) and because of the imprecision with which the evidence is expressed, it is not possible to make any finding as to what specifically these persons were told or to make any meaningful finding as to the circumstances in which or the reasons why the information was conveyed. The evidence, such as it is, is expressed at a high level of generality and, in my view, is ambiguous. I cannot place any significant weight on it, even if it be relevant.
102 Instyle specifically drew my attention to an example of this evidence, which was an email from Carl Davies from Chair Solutions Pty Limited (Chair Solutions) to Mr Marshall from GECS on 4 November 2009 referring to a discussion between them (apparently two weeks previously) concerning advice from Mr Marshall not to use any fabric not covered by GECS certification in relation to "our GECA approved chair range". The email also refers to another email (not in evidence) which had been received by Chair Solutions approximately four weeks previously. According to Mr Davies' email, Mr Marshall had explained to him in the discussion that section 3.2.3 (presumably of the GECA Furniture Standard) "did not apply". Mr Davies' email of 4 November 2009 was seeking clarification about that matter. Instyle submitted that it was conspicuous that this email has not been answered by GECS. However, Mr Marshall's earlier explanation, and the circumstances in which he gave it, are not in evidence. I should add that the email of 4 November 2009 seems to have been sent in the context of Mr Davies raising the possibility of substituting fabrics for a product already having a GECA certification. Whether this was also the context for the earlier discussion is not at all clear. It is at least possible that it was, because the email records Mr Marshall having mentioned the need for fabrics to be checked for "hazardous substances" and "heavy metals". There is some remote hearsay evidence that Mr Marshall had told Mr Davies that GECS intended to amend the standard. On the present evidence the specific dealings between Mr Davies and Mr Marshall are not clear. Indeed, the position is obscure. Once again, even if the evidence be relevant, I cannot place any significant weight on it.
103 Instyle tendered a large number of EPDs with respect to various identified branded products that had been certified within the period February 2007 to October 2009. So far as I can tell, only three of these are EPDs identified in Annexure 1 to the 2FASC, namely the EPDs issued to Inline Contract Furniture Pty Ltd (2007), to Chair Solutions (2008) and to Hufcor Group and Kyissa Pty Limited (2008). No objection was taken to the tender.
104 A purpose of tendering these documents, as I understand it, was to show examples of what Instyle regarded as conduct that was "inconsistent" with the GECA Furniture Standard, as well as conduct that Instyle regarded as being "consistent" with the standard. I note that none of these documents relate to Instyle or its fabrics.
105 The EPDs included a table setting out Key (or Core) Environmental Performance Findings (or Characteristics) against which the particular products were assessed. The presentation of the tables in the EPDs varied considerably. In some cases the table included as one criterion the requirement set out in section 3.2.3 with respect to "fabrics" in terms which omitted the qualification that the requirement only applies when the fabric comprises more than 10% of the total weight of the product. Instyle submitted that this was conduct that was "inconsistent" with the GECA Furniture Standard. In a number of these cases, however, the product was being certified as white furniture. Therefore, in those cases, the requirements of section 3.2.3 were irrelevant to the certification and the EPD in question.
106 In some cases section 3.2.3 was materially reproduced in the EPD with the 10% qualification relating to fabrics.
107 Significantly, in some cases, the EPD was with respect to certification under a different standard, and not the current GECA Furniture Standard. Having said that, in one instance (Ofquest Australia Pty Limited trading as Desking Systems Australia) the table in the EPD included the 10% qualification relating to fabrics where the relevant standard was identified as GECA 28-2005-Furniture and Fittings, indicating that this qualification was present in an earlier GECA standard.
108 In some cases no material from section 3.2.3 of the GECA Furniture Standard was reproduced, but an acknowledgment by the manufacturer was made in the following terms:
The manufacturer has acknowledged and the license conditions stipulate that only fabrics assessed according to the relevant Environmental Choice Australia Standard requirements can be used in certified furniture. This includes textiles certified as compliant to the Environmental Choice Australia Mark, Nordic Swan, EU Flower, or those that have been assessed in the scope of this assessment and found to be in conformance with the relevant criteria in the GECA Furniture and Fittings Standard.
109 The circumstances in which, and the reasons why, acknowledgments in this form came to be made are not in evidence. Instyle submits that I should infer that what the manufacturer had acknowledged was an obligation it saw as being imposed by GECA in purported compliance with the GECA Furniture Standard. Even if I were to make this inference, I do not think that this carries the matter much further because it is clear from paragraph 17B(b) of the 2FASC that Instyle accepts that, even when the fabric weight contributes less than 10% of the weight of the finished product, the fabric must nevertheless comply with at least section 3.3 of the GECA Furniture Standard if the finished product is to be certified as compliant with that standard. In short, it is not apparent why the statement, as quoted, is necessarily inconsistent with the requirements of the GECA Furniture Standard as propounded by Instyle in its own pleading.
110 The EPD with respect to Chair Solutions states:
Chair Solutions offer a range of fabrics for customer selection. Fully certified chairs are those which are upholstered in fabrics certified by Nordic Swan, EU Flower or which carry the Environmental Choice Australia Mark.
111 In its written submissions, Instyle submitted that this statement was inconsistent with the GECA Furniture Standard. In this connection it submitted, amongst other things, that a chair upholstered with a textile that has not been certified as being compliant with the GECA Textiles Standard can be part of a chair certified on "a whole of chair basis", regardless of the weight of the fabric. This submission does not directly engage what the quoted statement actually says. The quoted statement makes no reference to the GECA Textiles Standard. The assumption behind the submission seems to be that the reference in the quoted statement to the Environmental Choice Australia Mark is in fact a reference to certification under the GECA Textiles Standard. It is not at all clear, however, that this assumption is correct. The statement could equally be a reference to separate certification under the GECA Furniture Standard.
112 The EPD with respect to Hufcor Group and Kyissa Pty Ltd is in a similar position. It states:
Only fabrics certified under the Environmental Choice Australia Mark can be specified for certified products.
Once again the challenge to this statement depends on the meaning to be attributed to "the Environmental Choice Australia Mark" and other facts which are not in evidence.
113 Taking all these considerations into account, it does not seem to me that Instyle's reliance on the EPDs significantly advances its claim for the relief it seeks in paragraph 3 of the principal motion.
114 Before passing from the EPDs I should note one further example because it relates specifically to that part of Instyle's case concerning alleged misleading or deceptive conduct or misrepresentation in connection with the requirements for Green Star Rating credit points. The EPD relating to Formay Furniture Pty Limited included a statement that, although the products were certified as white furniture, "the nominated product lines will be required to have certified textile in order to comply to the full point score available under the Green Star Rating Tool in Australia". Instyle submitted that this statement was inaccurate. However, it is not possible to form even a preliminary view on that matter because the "Green Star Rating Tool" as at the date of the EPD (namely 7 July 2008) is not in evidence. As I have already noted, the "technical clarification" on which Instyle relies was one that was said to have been made only "very recently" and had not even been published as at 28 August 2009, a significant period of time after this EPD was apparently published.
115 Having reviewed and reflected on the evidence and on the oral and written submissions of the parties, it is clear to me that the parties are not only at issue with respect to the interpretation of aspects of the GECA Furniture Standard, but also with respect to how the standard is to be applied and has been applied in given circumstances. How the standard is to be applied or has been applied throws up factual issues which will be peculiar to the nature and purpose of a given application for certification (for example, whether the application relates to finished goods or white furniture) and the objectives and intentions of the person who seeks or who has obtained that certification with respect to that person's future dealings with and promotion of the certified product.
116 These considerations may well be influential with respect to the way that GECS or GECA seeks to explain or has explained to a given applicant for certification or a licensee what the standard means or how the standard applies in the given circumstances. This is not to say that GECS or GECA has a licence to explain or apply the standard in some idiosyncratic way; still less is it a licence to GECS or GECA to misrepresent what the standard actually says. It must be borne in mind, however, that statements, whether written or oral, which are viewed in the abstract or at least viewed without a full understanding of all the surrounding circumstances, may not truly reflect what was actually conveyed in the circumstances. It will be apparent from my summary of the evidence thus far that the facts are far from complete and, in some cases, are unclear.
117 Instyle's submissions on this part of the principal motion were directed primarily to the order sought in paragraph 3(a) of the principal motion. It was this form of the injunction that was pressed rather than the alternative injunction sought in paragraph 3(b) which was said by Instyle to be "very much a subordinate claim".
118 Instyle submitted that, if an injunction in terms of paragraph 3(a) of the principal motion is not granted, it will suffer substantial damage and that the respondents' conduct could potentially do irreparable harm to its business. It submitted that the damage arising from the Corporate Express claim alone is presently estimated at $400,000.00 per year. It submitted that it may not recover this lost business in the future. It submitted that the respondents have created uncertainty in the market place about whether Instyle's textiles can be specified and used on or as part of GECA certified furniture and that the respondents have taken no action to correct that uncertainty. It submitted that the respondents would suffer no damage, or at least only insignificant damage, as a consequence of an injunction being granted in terms of paragraph 3(a) of the principal motion because that injunction would only restrain the respondents from making statements inconsistent with the statements set out in paragraphs 17B and 18 of the 2FASC. Finally, Instyle submitted that there is a real "balance" in precluding the respondents from continuing to publish potentially (at least) misleading statements in the future (pending final hearing) whilst allowing them to retain the benefit of past uncorrected statements.
119 I accept that if the respondents have misrepresented the requirements of the GECA Furniture Standard then there is likelihood that Instyle will have suffered loss as a result. The present evidence suggests that Corporate Express committed to using the fabrics of another supplier, at least in the first instance, so that the certification process of the EXP chairs would not be held up while there was uncertainty about using Instyle's and another supplier's fabrics. However, that damage is capable of reasonable ascertainment and assessment. What is less clear is whether the respondents' conduct, as alleged in the 2FASC with respect to the Corporate Express claim or the EPD claim, has caused or is likely to cause loss to Instyle which extends beyond the loss of sales of fabrics to Corporate Express to the loss of sales to others. Instyle adduced no evidence, for example, that its market share had been affected more generally by the conduct of which it complains in this regard. It is to be noted, for example, that there is no evidence that any statement made in any of the EPDs (which do not, in any event, relate to Instyle's fabrics) has caused Instyle any loss of custom. Notwithstanding this, I am prepared to accept that there is some risk that the pleaded conduct with respect to the Corporate Express claim and the EPD claim as exemplified in the evidence, if wrongful as alleged, could cause loss or damage to Instyle extending beyond a loss of sales to Corporate Express, that would be difficult to detect and quantify. In this sense damages may not be an adequate remedy for Instyle should it be ultimately successful in this part of its claim, because, while its loss of sales to Corporate Express may be capable of being ascertained and assessed with reasonable certainty, the true effect of the impugned conduct on its business may not be known or at least fully known.
120 Instyle's claim to the relief sought in paragraph 3(a) of the principal motion is, however, based on the interpretation and application of the GECA Furniture Standard for which it contends. The interpretation of the standard for which Instyle contends is disputed by the respondents. I am satisfied that the dispute is a genuine one and raises contestable issues. The dispute, however, goes beyond mere interpretation of the standard and, as I have said, extends to how the standard should be or should have been applied in given circumstances. It is plain that the correctness of the opposing positions can only be determined at a final hearing on all the evidence, whereas the relief that Instyle seeks would require GECA and GECS, who have the sole and exclusive authority to make and apply the GECA Furniture Standard, to interpret and apply that standard, and to conduct their future business dealings in that regard, in a way that is not inconsistent with how Instyle contends the standard should be interpreted and applied. To so order may well require GECS and GECA to change, significantly, the way in which the standard has been interpreted and applied by them, apparently for some time now, and to conduct their future business dealings in ways that are not inconsistent with (and, perhaps, only consistent with) what ultimately may be found to be an erroneous or misguided interpretation or application of the standard. Indeed, depending on how the case is decided at the final hearing, the relief sought in paragraph 3(a) of the principal motion, if granted, may work to mislead or deceive the trade and the public.
121 The respondents advanced what they submitted were other problems with respect to granting the relief sought in paragraph 3(a) of the principal motion.
122 First, the respondents pointed to the breadth of the order. They submitted that the order that is sought is not tied to Instyle or its products but, rather, is "at large". This submission correctly identifies the breadth of the order that is sought, but that would not be, in my view, a reason for not granting relief in that form if it were otherwise appropriate to do so. Indeed, were the order to be conditioned as the respondents submit it should be, it would leave open the possibility of a differential interpretation and application of the GECA Furniture Standard, depending on whose fabrics were to be used. This would be undesirable and not in the public interest.
123 Secondly, the respondents pointed to what they submitted was a lack of specificity in the order that is sought. In this connection it is to be noted that Instyle seeks to enjoin the respondents from making or publishing any statement that is "inconsistent" with any matter pleaded in paragraphs 17B and 18 of the 2FASC. Apart from the problem relating to the contentious interpretation and application of the GECA Furniture Standard to which I have referred, the respondents submitted that an order in this form would be, in any event, unclear as to precisely what the respondents can and cannot say. In my view there is substance to this submission. An order in this form may well promote a debate (on which reasonable minds could differ) whether a specific statement (not presently identified) that is made or published in specific circumstances (also not presently identified) is inconsistent with the general and unqualified statements pleaded in paragraphs 17B and 18 of the 2FASC. In short, in my view, the order that is sought, if made, would promote uncertainty.
124 Thirdly, the respondents submitted that, given the nature of their operations, it would be costly and onerous, especially for GECS and GECA, to be subjected to an order in this form. The respondents submitted that, on a daily basis, GECS and GECA are required, through their employees, to explain the GECA Furniture Standard to licensees and applicants for certification, to apply the standard, and to explain the effects of GECA certification. They submitted that it would be necessary for them to pass a number of documents through their lawyers to ensure that proposed statements are not inconsistent with the statements pleaded in paragraphs 17B and 18 of the 2FASC, to review their currently published material for possibly or arguably inconsistent statements, and to monitor documents and statements from GBCA for changes in relation to the way that ratings are made by that organisation. I accept the general thrust of this submission. Whilst the extent to which such activities may be necessary is not clear on the evidence, I would expect that the respondents would act cautiously and prudently to ensure that that there was no risk of a breach of any order made by the Court. I accept that, if the order sought in paragraph 3(a) of the principal motion were to be made, the respondents would be required to carry out these steps to some extent and possibly to an extent that would subject them to great cost and inconvenience, which would not be adequately compensated by enforcement of an undertaking as to damages should Instyle ultimately fail in its claim for final relief in respect of the Corporate Express claim and the EPD claim. I reject Instyle's submission to the contrary effect.
125 I have come to the conclusion that the balance of convenience lies in favour of refusing the relief that is sought in paragraph 3(a) of the principal motion. I have given consideration to whether an order, differently framed to overcome the lack of specificity to which I have referred, should be made. However, even if this were to be done, the balance of convenience would still lie in favour of refusing relief, given the real dispute between the parties as to how the GECA Furniture Standard should be interpreted and applied.
126 I should add that in oral and written submissions directed to the form of the order sought in paragraph 3(a) of the principal motion (which, as I have noted, refers in terms to paragraphs 17B and 18 of the 2FASC), Instyle submitted that reference to sections 3.1, 3.4, 4, 5, and 6 of the GECA Furniture Standard could be "added" to paragraph 17B for the purposes of the interlocutory injunction it seeks. This, however, suggests an attempted reformulation of Instyle's case as now pleaded in the 2FASC. I do not propose to consider the present application for the injunctive relief sought in paragraph 3(a) of the principal motion on any basis other than with respect to the claims now formulated in the 2FASC.
127 The submissions of the parties in respect of the relief sought in paragraph 3(a) of the principal motion focused on the interpretation and application of the GECA Furniture Standard, which finds specific reference in paragraph 17B of the 2FASC. Paragraph 18 of the 2FASC focuses on the product scores under the relevant Green Star Rating Tool of upholstered and white furniture that has also been certified by GECA. I have given consideration to whether an order should be made which, corrected for form to overcome the problem with respect to lack of specificity to which I have referred, relates only to the representations pleaded in paragraph 18 of the 2FASC. I have come to the conclusion that no such order should be made. I have already referred to the evidence on which Instyle relies in this regard. The two representations relied upon by Instyle as having been made by the respondents both relate to periods of time well before the making and publication by GBCA of the "technical clarification" which, on the evidence, seems to have modified the application of the relevant Green Star Rating Tool. It is this modified application of the relevant Green Star Rating Tool that, on the evidence, constitutes the foundation for the matters now pleaded in paragraph 18 of the 2FASC. Instyle has adduced no evidence that the two representations it relies upon misrepresented the proper application of the relevant Green Star Rating Tool at the time either of those representations was made.
128 Although only advanced faintly by Instyle, I should say something about its claim to the relief sought in paragraph 3(b) of the principal motion. It is to be noted immediately that the order sought in that form is considerably broader than the order sought in paragraph 3(a). The order sought in paragraph 3(b) is unconfined as to any particular matter set out in the GECA Furniture Standard or any particular matter in the many GBCA publications that are noted in the paragraph, other than that the matter must relate to the calculation of product scores with respect to certified products falling within various categories of products in the GECA Furniture Standard. Perhaps more importantly, the order that is sought is not confined to any matter pleaded in the 2FASC as constituting conduct in contravention of the TPA or FTA. The proposed form of the order also suffers the same defect with respect to lack of specificity as the order sought in paragraph 3(a). Once again, an order in that form would promote uncertainty, particularly having regard to the somewhat indeterminate range of matters dealt with in paragraph 3(b). In my view, the making of the order sought in paragraph 3(b) of the principal motion would be unwarranted and oppressive. I refuse to grant that relief.