7.4.2 Pirmax's defence - HR Panel Product
285 By its concise statement in response to Kingspan's further amended cross-claim, Pirmax denies that it made the representations alleged, and instead characterises the representations it had made as follows:
6. As to paragraph 6, subject to the identification and production of the exact references in the Pirmax Advertising Material which, it is alleged, constituted the HR Panel Representations, Pirmax says:
(a) since 1 January 2016, statements made in relation to the HR Panel Products or certain of them are identified in Annexure A hereto (Statements Relating to Pirmax HR);
(b) since 1 January 2016, it has relied on and made available reports relating to the HR Panel Products or certain of them identified in Annexure B hereto (Pirmax HR Reports);
(c) the Statements Relating to Pirmax HR and the Pirmax HR Reports concern matters of technical complexity and expert opinion in determining the relevant requirements of the NCC/BCA, and referenced Standards, in respect of classification of the fire hazard properties of thermal insulation lining materials (classification requirements), the test methods and procedures specified by the classification requirements and the assessment of test results for the purposes of the classification requirements;
(d) the Pirmax HR Reports self-evidently comprise the technical expertise and opinions of their respective specialist authors;
(e) save for the statements noted below, the Statements Relating to Pirmax HR self-evidently comprise the technical expertise and opinions of their respective specialist authors;
(f) the Statements Relating to Pirmax HR in items 5, 9-12, 17-20, 27 and 30-31 reported the result of the technical expertise and opinions of the respective specialist authors of the Pirmax HR Reports;
(g) to the extent that any of the Statements Relating to Pirmax HR and the Pirmax HR Reports were reasonably acted on by Pirmax distributors and/or customers of Pirmax distributors, and certain direct accounts in the Market, it would be understood that such matters involved the technical expertise and opinions of such specialists not Pirmax, that the classification of the Pirmax HR Panel Products had been determined in accordance with the technical expertise and opinions of such specialists, and that Pirmax was not qualified to, and did not purport to, verify the same;
(h) it otherwise does not admit the allegations.
286 Annexure A to the concise statement in response to the further amended cross-claim then excerpted various of the statements contained in the Pirmax Exova Report, the Acronem Report, the Ignis Report, the Ignis Certificates, the technical data sheets, and the Pirmax website.
287 Pirmax submits that it is "obvious but important" to recognise that the statements that it made in relation to the HR Panel Product concerned matters of technical complexity and expert opinion, specifically as to compliance with the NCC and the various standards referenced therein. Pirmax sought to distance itself from those statements, instead submitting that it relied upon them without verification. In its written closing submissions, Pirmax submits as follows:
The Pirmax HR Reports and Statements relating to Pirmax HR [Panel Product] self-evidently comprised or reported the technical expertise and opinions of their respective specialist authors. To the extent that any of the Statements Relating to Pirmax HR [Panel Product] and the Pirmax HR Reports were reasonably acted on by Pirmax distributors and/or customers of Pirmax distributors, and certain direct accounts in the Market, it would be understood that such matters involved the technical expertise and opinions of specialists not Pirmax, that the classification of the Pirmax HR Panel Products had been determined in accordance with the technical expertise and opinions of such specialists, and that Pirmax was not qualified to, and did not purport to, verify the same.
288 In a similar vein, Pirmax submits that the representations that it made about the HR Panel Product were made with reference to (and were therefore qualified by) a series of reports prepared by qualified specialists, including the Pirmax Exova Report, the Acronem Report, and the Ignis Report. In its written closing submissions, Pirmax submits that:
…Pirmax's statements were made in circumstances where Pirmax's distributors and direct accounts, and architects, registered building surveyors, building certifiers, fire engineers, builders and/or other participants in the building industry, when considering use of Pirmax HR in any particular application in accordance with their obligations, were provided with or had available to them copies of the Pirmax HR reports, which constituted expressions of opinion of appropriately qualified experts.
289 Further, Pirmax submits that Kingspan "pays insufficient attention to the context in which Pirmax's materials were published and to whom they are directed". Specifically, Pirmax submits that the relevant audience at which the representations were aimed were architects, registered building surveyors, building certifiers, fire engineers, builders and other participants in the building industry, and that the representations were made to those persons in order to enable them to assess and certify whether the HR Panel Product was appropriate to use in particular applications. That certification process, Pirmax submits, had to be carried out by "specialist and appropriately qualified building practitioners, such as building surveyors in Victoria, and specialist fire safety engineers, according to their professional obligations". Against that background, Pirmax submits that the representations would be understood by that professional audience, who necessarily had familiarity with the NCC and its referenced standards, and who would not be misled by the manner in which Pirmax made representations.
290 A related but distinct submission, made for the first time in its written closing submissions, was that any reference to AS 5637.1 that Pirmax made in respect of the HR Panel Product was in error, as Pirmax did not in fact rely on a report conducted in accordance with AS 5637.1. On that score, Pirmax submitts that:
…the erroneous reference [to AS 5637.1] was not (and could not reasonably have been) false or misleading to those to whom it was directed, namely, architects, registered building surveyors, building certifiers, fire engineers, builders and/or other participants in the building industry. That it was an obviously mistaken reference was made clear by other references to the ceiling only test and ceiling only application in Pirmax's same materials.
...
…the recipients of those materials would appreciate that the [HR Panel Product (in a white or silver finish)] was evaluated by Ignis as supporting a Group 1 classification for use in a ceiling and/or soffit application… That the Group 1 classification was for ceiling and/or soffit application only was expressly stated in Pirmax's materials. Given reliance on the ceiling only test and the ceiling/soffit only application, these specialist recipients would appreciate that reference to AS 5637 (i.e., a wall and ceiling test) was an obvious error, such that the error was not operative or material.
At the very least, the reference to AS 5637 in this context was contradictory.
291 Pirmax submits, in any event, that the mistaken reference to AS 5637.1 was immaterial; the key point was not the specific standard to which the HR Panel Product was tested (that is, whether it was tested to AS ISO 9705 or to AS 5637.1), but the fact that it achieved a group 1 rating for ceiling or soffit applications only in accordance with the Transitional Provision.
292 Pirmax submits that, on its proper construction, the Transitional Provision permitted ceiling-only test reports issued or published after 1 May 2016 to remain valid until 1 May 2019. That, Pirmax submits, was because the date of 1 May 2016 relates to the version of the NCC on which the testing is based, rather than the date of the test report itself. Accordingly, it submits that it was permissible for it to rely upon the Pirmax Exova Report as a test report indicating the group number of the HR Panel Product. Relatedly, Pirmax submits that Exova's unwillingness to classify a group number for the HR Panel Product was irrelevant; the Pirmax Exova Report nonetheless fell within the scope of the Transitional Provision because it indicated "in the sense of pointing to or providing ground for" a group number for the HR Panel Product, despite not doing so expressly.