Meaning of 'performance' or 'water treatment performance'
51 On its pleaded case, the Performance Representation was framed by the applicant as being tied to an objective reader's understanding of the respective filters' performance and ability to filter stormwater.
52 As part of determining whether the Performance Representation was made on the applicant's case, it is necessary to determine whether an objective reader would have understood a reference to "performance" or "water treatment performance" (and any representation about performance) to mean only the ability of the filters to remove TSS, TN and TP from stormwater, or to other factors, including speciated data underlying those totals.
53 It was the applicant's case that the performance of stormwater filters in the stormwater filtration industry is measured only by reference to the filter's ability to remove TSS, TN and TP from stormwater. In this regard, the applicant's case was that the standard by which the performance of stormwater filtration systems are assessed is set out in the Stormwater Quality Improvement Device Evaluation Protocol (SQIDEP) and the Stormwater Management Design Objectives (State Government Policy).
54 As such, the applicant's case is that that the Performance Representation made in the IES Report was that the NSC Filter was inferior to the OBC Filter at removing TSS, TN and TP from stormwater.
55 The respondent submits that removal of TSS, TP and TN are only some of the factors used to assess performance of stormwater filtration systems and that other relevant factors "include (but are not limited to) speciated data regarding removal of contaminants [and] issues regarding maintenance and longevity". The respondent also submits that the ability to filter gross pollutants, the ability to remove other pollutants of concern and the suitability of the device for specific land use and receiving environment are relevant criteria of performance.
56 The applicant challenged the respondent's ability to make submissions by reference to factors other than those which had been pleaded by the respondent in its Further Amended Concise Statement in Response. However, for the following reasons, this challenge is rejected.
57 The applicant was on notice that the respondent's case extended beyond the precise factors pleaded by it, and the evidence at the hearing proceeded on that basis also.
58 In this regard, the respondent pleaded that:
(1) [the] removal of [TSS, TP and TN] are only some of the many factors identified by SQIDEP and the State Government Policy for assessing the performance of stormwater filtration systems;
(2) [other] factors relevant to assessing the performance of stormwater filtration systems include (but are not limited to) speciated data regarding removal of contaminants, hydraulic loading rates, and issues regarding maintenance and longevity;
(3) the "Efficiency Ratio" and "Average Concentration Removal Efficiency" for the removal of [TSS, TP and TN] are only some of the many other factors relevant to assessing the performance of stormwater filtration systems, including by reference to SQIDEP and the State Government Policy;
(4) an objective reader, experienced in the stormwater filtration industry or involved in the installation of stormwater filtration systems in developments, would have understood that a reference to the performance of a filter, or the water treatment performance of a filter, was a reference to a broad number of factors including but not limited to removal of [TSS, TP and TN].
59 Pursuant to a request for particulars from the applicant's solicitors dated 21 February 2022 as to the "many factors", "other factors" and "broad number of factors" pleaded by the respondent, the respondent's solicitors referred the applicant's solicitors to its evidence, including its expert evidence, in letters dated 2 March 2022 and 10 March 2022. Further, no objection was taken to the tender of Mr Damian McCann's report.
60 Finally, and without objection by the applicant, the other factors which were used to assess performance of stormwater filtration systems was the focus of much of the evidence adduced at the trial, including through cross-examination by the respondent's counsel and to which no objection was taken.
61 For the following reasons, an objective reader would not have understood a reference to, or representation about, "performance" or "water treatment performance" of a filter to mean only the ability of the filter to remove TSS, TN and TP from stormwater.
62 First, the content of the IES Report does not support such a finding. There is no reference in the IES Report to "totals" in the sense of TSS, TN or TP. On the other hand, there is a specific reference to soluble pollutants in the IES Report. For example, in version 5, there is express reference to the NSC Filter and OBC Filter performing in a different manner and that being evidenced from "expected different Cation Exchange Capacity (CEC) for sorption reactions for removal of soluble contaminants such as Ammonium, Ortho Phosphate, metals etc." (emphasis added). This wording was changed in version 6, but there remained a reference to the ability of the filters "to sequester Ammonium and Ortho-Phosphate" (being subspecies of TN and TP, not to "totals") and an ability to remove nitrogen and phosphorous (with no reference to that being "totals" only). That is, the IES Report explicitly referred to subspecies of nitrogen and phosphorous to support an expressed observation that the NSC Filter and OBC Filter "would perform in a very different manner".
63 An objective reader, being someone experienced in the stormwater filtration industry, would understand that ammonium and ortho-phosphate are subspecies of nitrogen and phosphorous. As such, they would likely conclude that, in this context, a reference in the IES Report to "performance" of a filter was broader than merely an assessment of the filter's ability to remove TSS, TN and TP.
64 Further, the IES Report states that differences in performance may arise from the filters being made with different components, functioning in a different matter, using "uncommon materials and critical dimensions", with "different media bed depth and media characteristics", different media particle size, different media surface area and with expected different Cation Exchange Capacity in their likely ability to remove soluble contaminants such as ammonium and ortho-phosphate, being speciated forms of nitrogen and phosphorous, as well as metals etc.
65 Second, both the applicant's expert, Dr Daniel Martens, and the respondent's expert, Mr McCann, accept that "performance" of a filter is not just about TSS, TN and TP, but also about the removal of gross pollutants. In particular, Dr Martens opined in his expert report that "the best means of evaluating the performance of a stormwater filter is in terms of its capacity to remove indicator pollutants, notably TSS, TP, TN and gross pollutants …" (emphasis added).
66 Notwithstanding the evidence of Dr Martens, its own expert, the applicant submitted that the filters are not intended to remove gross pollutants, relying on the evidence of Mr Michael Wicks, director of the respondent, that "typically" gross pollutants are picked up prior to the stormwater reaching the filters.
67 Of course, the fact that gross pollutants are typically picked up prior to reaching the filter does not mean that they are always picked up such that the filter's ability to remove those gross pollutants is irrelevant to its performance.
68 To support its submission, the applicant also relied upon a statement from the SPELFilter marketing brochure as follows:
A SPEL Stormceptor Class 1 upstream of the SPELFilter in the treatment train greatly increases the life cycle interval of the SPELFilter as the SPEL Stormceptor Class 1 removes the larger gross pollutants, coarse sediments, total suspended solids and hydrocarbons, enabling the SPELFilter to target fine particulate matter and nutrients.
(emphasis added)
69 Leaving aside that little weight can be given to a statement in a marketing brochure written by an unidentified person, there are two things to observe about the statement in the brochure:
(1) the inclusion of a "SPEL Stormceptor Class 1 upstream" is presented in the brochure as an optional addition to the filter itself in order to "increase the life cycle". This suggests a filter may be able to be used and installed without such a gross pollutant capture system upstream;
(2) the statement in the brochure implies that, even if a "SPEL Stormceptor Class 1" is installed, at least some gross pollutants (i.e. the non-"larger" gross pollutants) will need to be removed by the filter.
70 For these reasons, the applicant's submission that the filters are not intended to remove gross pollutants is not accepted. Further, the evidence of the two independent experts is accepted, being that removal of gross pollutants is a factor relevant to filter's performance.
71 Third, it was accepted by both Dr Martens and Mr McCann that criteria beyond the ability to remove TSS, TN and TP may be considered relevant in the assessment of a filter's performance, including, for example, the ability to remove speciated forms of nitrogen and phosphorous - Dr Martens by reference to table 2 of SQIDEP and Mr McCann by reference to his experience in the industry generally and specifically his experience as a member of the SQIDEP technical panel. As to SQIDEP, Mr McCann gave evidence that:
SQIDEP requires the trial design for a product to report on constituents of pollutants not just the totals [TSS TN TP]. As part of a review the technical panel will consider pollutant removal pathways … and note limitations of a product to remove key pollutants. As a member of the SQIDEP technical panel I can confirm that the assessment criteria TSS, TP and TN are not the sole consideration within the data which is assessed.
72 Fourth, a person experienced in the stormwater industry would seek to understand not just the "TN" or "TP" figure, but how those totals arose and whether that figure is a true representation or predictor for the removal of nitrogen or phosphorous that can be achieved in the field. Mr Wicks, Dr Martens and Mr McCann all gave evidence that the make-up of an influent used in testing was relevant to understanding the significance of a TN or TP removal result. This is because different speciated forms of nitrogen and phosphorous are of varying difficulties to remove.
73 Fifth, as to the council documents which were in evidence, rather than showing that TSS, TN and TP are the only relevant considerations of interest for "performance" of a filter, many council documents indicated the importance of different parameters being met, depending on the receiving environment. Dr Martens was asked in cross-examination "do you accept that, in different council areas, there are pollutants of concern that depend specifically on the habitats or the waterways, for example, that are in those council areas?", to which he responded "that's possible. Yes." Mr McCann, under cross-examination, repeatedly pointed out the parts of various council documents that indicated that, although TSS, TN and TP are the "minimum standards" that must be met, councils could require that different standards and parameters are met in different environments. Mr Wicks also gave evidence that, in getting a filtration device approved, some councils will look at speciated data for dissolved inorganic nitrogen.
74 Finally, Mr McCann stated in his report that "performance and treatment performance" in his experience "would be understood by an experienced practitioner as a description of the capabilities of a particular device in terms of achieving the stormwater objectives at a given site, this includes how well it removes specific pollutants of concern, maintenance requirements, useful life, and suitability for a specific land use and receiving environment." This evidence was not the subject of direct challenge by Dr Martens.
75 Having regard to the content of the IES Report and the evidence identified above, an "objective reader", being a person experienced in the stormwater filtration industry in Australia or involved in the installation of stormwater filtration systems in developments, would not understand a reference to, or representation about, the "performance" and "water treatment performance" of a filter to mean only the filter's ability to remove TSS, TN and TP, but rather would understand that it also means other factors such as ability to filter gross pollutants, ability to filter other pollutants of concern (including heavy metals, and speciated forms of nitrogen and phosphorous), maintenance requirements, longevity and suitability of the device for specific land use and receiving environments.
76 For these further reasons, the Performance Representation was not made as alleged by the applicant.