FEDERAL COURT OF AUSTRALIA
Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd
[2012] FCA 510
| IN THE FEDERAL COURT OF AUSTRALIA | |
| PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 Applicant | |
| AND: | PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629 First Respondent TONY GREGORY PURDON Second Respondent RALPH T MARTIN Third Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. Subject to Order 2, judgment be entered for the applicant with costs.
2. The applicant is directed to file and serve upon the third respondent within 10 days proposed minutes of orders concerning the terms of the declaration and injunctions sought by the applicant in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
| QUEENSLAND DISTRICT REGISTRY | |
| GENERAL DIVISION | QUD 272 of 2009 |
| BETWEEN: | PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 Applicant |
| AND: | PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629 First Respondent TONY GREGORY PURDON Second Respondent RALPH T MARTIN Third Respondent |
| JUDGE: | GREENWOOD J |
| DATE: | 18 MAY 2012 |
| PLACE: | BRISBANE |
REASONS FOR JUDGMENT
The proceedings – background and contentions
1 The applicant (“Plastec”) carries on the business of designing, manufacturing and selling plastic plumbing pipes and pipe fittings, that is, plastic plumbing products. It manufactures some of these products in Australia. It commissions the manufacture of others overseas and imports them into Australia. It wholesales its plastic plumbing products to approximately 1,200 account customers in Australia and New Zealand consisting of large plumbing retail chains as well as other smaller retailers of plumbing products. Those plumbing products are sold by retailers to plumbing contractors for installation in, put broadly, plumbing and drainage systems.
2 Plastec manufactures and sells a core range of approximately 300 to 400 different types of plumbing products which, taking into account individual variations within these products, constitutes a total range of products of between 900 and 1,200 products in all.
3 The vast majority of these products are manufactured from material described as Acrylonitrile-Butadiene-Styrene (“ABS”) or Acylonitrile-Styrene-Acylate (“ASA”) for installation in domestic and commercial applications in Australia. This case is concerned with four Plastec fittings manufactured from ABS or ASA generally described as “swivel and expansion joint fittings”. They are described as: Expansion Pipe Joiner, model number 15130; Expansion Pipe Joiner, model number 15642; Adjustable Swivel Pipe Joiner, model number 15132; and Adjustable Swivel Pipe Joiner, model number 15199. In the main, these four fittings are connected by plumbers to pipes made from a class of plastics materials called unplasticized Polyvinyl-Chloride (PVC-U), laid underground (for example, sewerage or waste water pipes), although they may also be laid above ground. The particular utility of these four fittings is that when joined to pipework laid underground, the fittings adjust to movement in soils that might be subject to either lateral or horizontal movement.
4 At the centre of the proceeding is Plastec’s contention that the third respondent, Mr Martin, the remaining respondent contesting the proceeding, engaged in misleading or deceptive conduct in trade or commerce in 2009 by distributing by electronic and postal communications a compilation of documents (the “Martin material”) very largely written by him (but for a Plastec advertising brochure included in the material) which contains 17 representations said by Plastec to be untrue.
5 It will be necessary in due course to set out in detail each of the representations contained in the Martin material. However, for present purposes, it is sufficient to say that the contended thrust of the material is to suggest that Plastec conducts its business, so far as the manufacture and sale of the swivel and expansion joint fittings are concerned (the “Plastec fittings”), in a way which fails to comply with the Plumbing Code of Australia 2004 (which has the force of law); fails to comply with applicable Australian Standards (which must be satisfied) governing the performance characteristics for the Plastec fittings; wrongly suggests that the Plastec fittings (made from ABS or ASA) can be joined to other plumbing pipes and fittings made from (PVC-U) by using a solvent cement called “Type N” solvent cement, rather than a mechanical coupling; and, among other representations, by illegally colluding with a body called Standards Australia and a certification entity called SAI Global (licensed under a national standards certification scheme) Plastec procured approvals for the Plastec fittings to which it was not entitled.
6 The Martin material is also said to suggest that the tests obtained by Plastec upon which its certifications for the Plastec fittings (certified to a particular Australian standard, namely, Australian Standard 2887 and an Australian Technical Specification described as ATS 5200.055) rest, were not obtained from an independent testing facility and thus the certifications cannot be relied upon, and further, Plastec has engaged in illegal conduct by representing that the Plastec fittings enjoy particular certifications when such certifications are said to have been improperly obtained.
7 The Martin material is said to further suggest that the Plastec fittings are defective; when installed in drainage systems they leak from the outset; “independent” tests show that the Plastec fittings do not meet the requirements of ATS 5200.055 to which they are certified; and, Plastec has supplied thousands of defective Plastec fittings in Australia and New Zealand.
8 Plastec contends that all of these representations are untrue and contends that Mr Martin’s conduct in making them contravenes s 52 of the Trade Practices Act 1974 (Cth) (as the applicable law at the time of the conduct) as the pleaded direct counter-factual for each representation is the true position, and the conduct occurred in trade or commerce.
9 Mr Martin does not deny distributing the Martin material.
10 It will be necessary in due course to explain the evolution and authorship of the Martin material. However, Mr Martin denies he has engaged in misleading or deceptive conduct, as the statements made in the Martin material must be understood, it is said, in the following context: Mr Martin says he is a retired experienced plumber; the statements made in the Martin material characterised by Plastec as representations are simply matters of opinion, not representations of fact; in expressing these opinions, as an individual, Mr Martin was not engaged in any aspect of trade or commerce; the opinions expressed were reasonably and genuinely held views expressed in good faith so as to bring to the attention of Regulators, Standards Australia, Certifying Bodies and Local Authorities (Councils) matters of importance to consumers and plumbers concerning the Plastec fittings, the long term fitness for purpose of the Plastec fittings and the conduct of Plastec, as Mr Martin perceived or understood those matters.
11 Mr Martin contends that consumers, the plumbing industry and participants engaged in the regulatory environment relating to the adoption of Australian Standards or Australian Technical Specifications concerning plumbing products and their manufacture and installation, suffer from information asymmetry and the distribution of the Martin material was intended by Mr Martin to address this asymmetrical position by providing independent and reliable information about the matters addressed in the Martin material.
12 Mr Martin also contends that the matters addressed in the Martin material are the subject of an implied immunity under the Commonwealth Constitution on the footing that the Martin material contains the expression of opinions or discussion directed to the role and conduct of the Commonwealth and the respective States; and role and conduct of instrumentalities and institutions responsible for the oversight and implementation of relevant laws; and, engages debate between citizens about political matters concerning the role and conduct of regulatory bodies and participants in determining whether particular plumbing products satisfy relevant standards.
13 In these proceedings, Mr Martin seeks to support these expressions of opinion by relying on two affidavits sworn by him in which he contends for a particular construction of the terms or requirements of particular Australian Standards; a view about the terms and requirements of ATS 5200.055; and the requirements of the national certification and regulatory arrangements established under joint arrangements applicable throughout Australia and New Zealand.
14 The particular statutory arrangements and regulatory environment will be explained later in these reasons.
15 In the affidavits sworn by Mr Martin or alternatively in the course of oral submissions, Mr Martin also seeks to support his view of the requirements for solvent cement bonding of fittings made from ABS or ASA to pipes or fittings made form PVC-U by reference to his understanding of the molecular bonding properties of these materials; the chemical properties of solvent cements; and the nature and scope of the tests he believes ought to have been undertaken in determining the “long term fitness for purpose” (in preventing leaks in the relevant systems) of joints made by joining the Plastec fittings made from ABS or ASA to pipes and fittings made from PVC-U.
16 In that sense, Mr Martin relies upon his own evidence and his own opinions to support his answer to each of Plastec’s complaints about each of the statements contained in the Martin material. Mr Martin calls no other evidence in support of his case. The affidavit evidence of the applicant on the various topics addressed by the deponents is unchallenged by any affidavit evidence from any person in support of Mr Martin’s case. Plastec objects to much of the opinion evidence of Mr Martin on the footing that Mr Martin is not a polymer chemist and cannot give expert opinion evidence about the molecular bonding properties of ABS or ASA to PVC-U in the course of particular jointing methodologies; nor, it is said, can he give expert opinion evidence concerning the chemical properties of solvent cements and particularly Type N solvent cement; and, nor, it is said, can Mr Martin give opinion evidence of the construction to be adopted of the terms or requirements of particular Australian standards or ATS 5200.055 as such matters involve questions of law.
17 Mr Martin can nevertheless, as a self-represented litigant, make submissions as to the construction to be adopted concerning the terms and requirements of particular Australian Standards or ATS 5200.055. However to the extent that Mr Martin’s submissions on that matter depend upon admissible evidence to make the submission good, the extent of the evidence called by Mr Martin is confined to only his own affidavits and his own opinions, to the extent that that evidence is admissible.
18 The objections to these aspects of Mr Martin’s affidavit evidence (and other objections) will be addressed in these reasons.
The allegations of collusion
19 By para 16(e) of the Second Further Amended Statement of Claim (“SFASC”), Plastec contends that, in that part of the Martin material known more generally as the “Purdon Report” (comprising the first 11 pages of the Martin material), Mr Martin represented at p 8 to each recipient of the Martin material that:
“Plastec has illegally colluded with SAI Global and/or Standards Australia with respect to obtaining approvals for the Plastec Fittings to which it is not entitled”.
20 By para 18(e) of the SFASC Plastec contends that the representation at para 16(e) is misleading or deceptive because Plastec has not so colluded. At para 18.3 of Mr Martin’s Second Further Amended Defence (“SFAD”), Mr Martin:
… admits that Plastec has not illegally colluded with SAI Global or Standards Australia with respect to obtaining approvals for the Plastec Fittings …
21 Notwithstanding that admission, Mr Martin has not offered an unconditional undertaking either together with his amended pleading or otherwise, not to represent to others that Plastec has so illegally colluded. That may be because Mr Martin more broadly contends that no conduct in contravention of s 52 arose (thus rendering the giving of an undertaking inappropriate) by reason of the matters set out at [10] to [12] of these reasons. Nevertheless, Mr Martin concedes that the underlying contention of illegal collusion between Plastec on the one hand, and SAI Global or Standards Australia, on the other hand, is groundless on the facts.
The composition of the Martin material
22 The Martin material distributed by Mr Martin on and after 22 September 2009 consisted of these documents (having regard to the examples at WC2 and WC3 to the affidavit of Mr William Casey sworn 10 November 2009 being Volume 2 Tab 6 of Exhibit 7): an 11 page letter described in the proceeding as the Purdon Report on the letterhead of Mr Purdon’s company, Plumbing Solutions & Services Pty Ltd, and bearing Mr Purdon’s name at the end and reciting his position as “Director”; a four page Plastec brochure entitled Plastec Innovative Plumbing Solutions/Swivel and Expansion Joints/Soil Movement Products; an earlier nine page letter written by Mr Martin dated 13 July 2009 addressed to Ms Krezo of Standards Australia, described by Mr Martin in the letter as a “paper” directed to the topics of:
Plumbing and Drainage – Industry Issues – Technical Standards/Specifications,
Plumbing Code of Australia & New Zealand
“A Defective Drainage Fitting”
- Possible Ramifications -
Test Report.
23 Mr Martin’s paper or letter of 13 July 2009 attached three Appendices described as A, B and C and those Appendices form part of the Martin material. Appendix A, written by Mr Martin, is directed to a 17 page discussion of a wide range of matters relating to ATS 5200.055 and the question of the connection of fittings made from ABS or ASA to pipe systems involving pipes made from PVC-U. Appendix B is a three page document written by Mr Martin directed to an introduction to a Hydrostatic Test Report conducted by the University of South Australia at the University’s Mawson Lakes Testing Facility. Appendix B concludes by attaching a copy of the University of South Australia’s Test Report described as a “TEST REPORT – Final” of March 2009 prepared by the Australian Irrigation Technology Centre (“AIT Centre”), a Centre within the Division of IT, Engineering and the Environment of the University of South Australia. The Report recites that it addresses the results of hydrostatic pressure tests for the purposes of “ATS 5200.055-2008 Clause 9.3 and modified test”, applied to five of Plastec’s swivel and expansion joint fittings and five fittings made from PVC-U by Plastec’s market rival, the Storm Plastics group of companies (comprising Storm Plastics (SA) Pty Ltd, Storm Plastics (Qld) Pty Ltd, Storm Plastics Admin Pty Ltd and Storm Plastics Drainage Division Pty Ltd).
24 The test report is signed by David Pezzaniti who is described as the Group Leader of the AIT Centre.
25 Appendix C to the Martin material is a photograph of test specimens of swivel joint assemblies with sections cut out in order to undertake tests of seals within the product described as elastomeric seals. That photograph although described as Appendix C in the Martin material relates to aspects of the test report undertaken by the AIT Centre attached to Appendix B.
26 The test report of the University of South Australia is admitted into evidence as part of the applicant’s evidence simply for the purpose of identifying the document as part of the Martin compilation of material forming part of the 58 pages of Martin material distributed by Mr Martin on and after 22 September 2009, and for the purpose of giving content and reference to observations made about the report by deponents. Although Mr Martin intended during the early part of the preparation of the proceeding for trial, to rely on the report at trial as an expert opinion concerning the matters addressed in it, Mr Martin has not put the report into evidence as an expert report and no affidavit from Mr Pezzaniti is adduced by Mr Martin in support of his defence for the purposes of s 79 of the Evidence Act 1995 (Cth). The report is not before the Court as proof of any matter contained in the report relevant to the proceeding.
27 As to the matters contended for by Mr Martin noted at [10]-[12] of the reasons, the applicant says this: Mr Martin is not simply a retired plumber agitating matters of opinion about Plastec or the Plastec fittings for the purpose of advancing the public interest or the interests of plumbers, consumers and regulators of plumbing products but rather, Mr Martin has agitated a campaign of attack upon Plastec and the Plastic fittings, for and on behalf of Plastec’s major rival, Storm Plastics; the statements made in the Martin material (the subject of the suit) are not opinions reasonably held by Mr Martin and nor were they expressed by him in good faith; the statements are incorrect and the representations of non-compliance with AS 2887 – not clarified earlier and ATS5200.055 were made in circumstances where Mr Martin had been told by Standards Australia and SAI Global, in writing, that both bodies were satisfied that Plastec fittings complied with the standard and the ATS; although Mr Martin elected to describe the Martin material as “independent” the truth is that Mr Martin largely wrote the Purdon Report and, using Mr Martin’s own description, “beefed up” the Purdon Report adversely to Plastec and then elected to incorporate the beefed up Purdon Report in the collection of Martin material distributed to the various addressees on and after 22 September 2009; the University of South Australia Test Report was not independent as it was written by Mr Martin, left out certain results favourable to the Plastec fittings, is not supported by any document describing or verifying the test data Mr Martin elected to put in the report, removed earlier draft references to Mr Elbe of Storm Plastics as the commissioning party so as to substitute Mr Martin as the apparent commissioning party, and was signed by Mr Pezzaniti as a report of the AIT Centre when the report was written, as Mr Martin explained and admitted in evidence, by Mr Martin.
Mr Martin’s role in the writing of the Report of the AIT Centre
28 As to the last matter, Mr Martin sought to offer in the witness box an explanation based on a conversation he had with Mr David Pezzaniti of why it became necessary for Mr Martin to write the University of South Australia Report. The evidence was inadmissible as Mr Martin sought to put the conversation into evidence as truth of the facts contained in the conversation. No affidavit from Mr Pezzaniti was put into evidence by Mr Martin to explain any relevant matter as to the authorship of the report. In any event, the matters Mr Martin wanted to explain to the Court based on his discussions with Mr Pezzaniti were just that, an explanation of why it was necessary for Mr Martin to write the report. The foundation fact not in issue according to Mr Martin’s oral evidence is that Mr Martin wrote the report of the University of South Australia issued out of the AIT Centre.
The contentions concerning Mr Martin and Storm Plastics
29 Plastec also contends that Mr Martin wrote letters for Storm Plastics and the extent or degree of engagement between Mr Martin and Storm Plastics as an interested beneficiary of Mr Martin’s agitations about the Plastec fittings or Plastec, can be seen, it is said, in the election by Storm Plastics to pay Mr Martin’s legal fees (invoices from solicitors and counsel) in excess of $400,000.00 in resisting the claims of Plastec. None of these fees were paid by Mr Martin. Mr Martin does not contend otherwise.
30 Plastec contends that at all material times Mr Martin was acting on behalf of Storm Plastics and whether his role is characterised as a consultant, agent, active participant or otherwise, the making of the representations on and after 22 September 2009 constituted conduct on the part of Mr Martin in the course of trade or commerce of Storm Plastics or, alternatively, the trade or commerce of Plastec itself as it was conduct on Mr Martin’s part directed to removing the Plastec fittings from sale in the market place, to the advantage of Storm Plastics, or in Mr Martin’s trade or commerce as an agent or provider of consultancy services.
The pleading of the various matters
31 These various contentions on Plastec’s part find the following expression in the pleading: in sending the Martin material to a range of addressees on and after 22 September 2009, Mr Martin adopted each of the representations in the Purdon Report as his own (para 21); in sending the Purdon Report to others, Mr Martin represented that the Purdon Report and the Martin material was or were an “independent and objective review” of the matters addressed in the Purdon Report and Martin material (para 21A) coupled with further representations that neither Mr Martin (nor Mr Purdon) had had a prior connection (personal, professional or financial) with any manufacturer of plastic swivel or expansion joints, and in particular, Storm Plastics or Plastec (para 21A(a)); that no manufacturer of such plumbing fittings had had any involvement in the preparation of the Purdon Report or the Martin material (pars 21A(b)); that Mr Martin had had no role in the University of South Australia Test Report other than to commission it, confirm instructions and make payment for it (pars 21A(c)); that Mr Purdon’s Report was prepared by Mr Purdon independently of any other person (para 21A(d)); and that Mr Martin (and Mr Purdon) was uninfluenced by actual bias against the products of Plastec in favour of those of Storm Plastics (para 21A(e)).
32 The particulars of these representations are said to be the reference to “independent review” at para 1.5, p 17 of the Martin material; the reference to “independent testing” at para 1.10, p 19 of the Martin material; the addressing of the University of South Australia Report to Mr Martin as “consultant”; Mr Martin’s description of the Purdon Report in an email addressed to government and other officials dated 29 September 2009 as “a report dated 22 September 2009, with an appendage, has recently come to hand”; the reference to “a comprehensive paper and report” in Mr Martin’s letter dated 25 October 2009 to the Chairman of the Association of Accredited Certified Bodies (and sent by email on 26 October 2009 to other bodies by Mr Martin); and the statements contained in the Purdon Report.
33 As to the representations pleaded at paras 21A(a) to (e), Plastec contends that Mr Martin enjoyed a prior personal friendship with Mr Bennett (the Principal of Storm Plastics) and through Mr Bennett a professional or financial connection with Storm Plastics; the University of South Australia Report was prepared for the benefit of Storm Plastics and the Plastec fittings, subjected to tests at the University, were obtained by Storm Plastics not by the University as the testing centre; Mr Martin had a major role to play in requesting modified tests to be undertaken, and in writing the report; the representations in the Purdon Report as “beefed up” by Mr Martin reflect actual bias against the Plastec fittings in favour of the Storm Plastics fittings; and the report of the University as written and distributed by Mr Martin reflected some tests required by Mr Martin (rather than the relevant Australian Standard or ATS) which Mr Martin knew and understood the plastic fittings could not pass, and omitted to report testing (the Liquid Infiltration Test) which the Plastec fittings had passed.
34 Plastec pleads that to the extent that any of the pleaded representations in the Martin material were expressions of opinion, the opinions purported to be those of an expert; they carried with the opinions, representations that the opinions were based on reasonable grounds, were honestly held upon rational grounds, and were independent and objective opinions in relation to the matters addressed in the material; and, the opinions in fact were neither based on reasonable grounds, nor were they honestly held upon rational grounds involving an application of relevant expertise, and nor were they independent and objective opinions in relation to the matters addressed in the Martin material.
No evidence called by Mr Martin of failures in the Plastec fittings
35 Finally, as to Mr Martin’s contention that the Plastec fittings are defective and leak from the outset when installed in drainage systems and that Plastec has supplied thousands of defective Plastec fittings in Australia and New Zealand, Plastec observes that Mr Martin, after some years of preparation of his case, has not called any evidence of any failure in the fittings in any installation, from a plumber or any other person, notwithstanding that the evidence reveals that Plastec has sold between 50,000 and 60,000 swivel joints and approximately 200,000 expansion joints for installation in plumbing systems relevant to the proceedings.
The solicitors and counsel ceasing to act for Mr Martin
36 The trial of the action commenced on 14 June 2011. At that time the first and second respondents, Mr Purdon and his company Plumbing Solutions & Services Pty Ltd, were represented by Mr Atkinson of counsel. Mr Martin was represented by Mr Rochow SC and Mr Coppola of counsel. At the conclusion of the first day, discussions between the legal advisers to the applicant and the legal advisers for the first and second respondents resulted in a settlement of the proceedings against the first and second respondents. The proceedings did not settle against Mr Martin. The solicitors and counsel who had appeared for Mr Martin withdrew. Mr Martin thereafter represented his own interests and upon the trial of the action against Mr Martin commencing on 17 April 2012 Mr Johnstone continued to represent the applicant and Mr Martin appeared in person.
The authorship and evolution of the Purdon Report
37 On 25 July 2011 Mr Martin wrote a letter to the solicitors for the applicant explaining the origin of the document described as the Purdon Report. The authorship of that document evolved in this way.
38 On a date that Mr Martin cannot recall, Mr Purdon sent a draft of a document bearing the date 13 September 2009 and addressed “To whom it may concern”, under the reference “Subject: Joint Methods of ABS fittings to PVC piping and WaterMark Certificate #WMKT00239” to Mr Martin.
39 On 20 September 2009 Mr Martin sent an email to Mr Purdon in which he said this:
… I’ve given your document a thorough read over and consider the points raised worthy of “beefing up”.
In consequence it may look entirely new to you.
However if you are not satisfied with it please amend if necessary, date/page etc and resend it with the Plastec brochure
- I’ll then forward it to those I sent my paper.
[emphasis added]
40 That email attached the beefed up, that is to say, amended Purdon Report, amended by Mr Martin. Mr Martin accepted in evidence that he had drafted the amendments to the document.
41 In Mr Martin’s letter to the solicitors for the applicant of 25 July 2011, Mr Martin attached a copy of Mr Purdon’s original letter dated 13 September 2009 (marked A) and a copy of Mr Martin’s email of 20 September 2009 and the version of Mr Purdon’s letter beefed up by Mr Martin (marked B). Mr Martin also attached (marked C) a copy of Mr Purdon’s email of 23 September 2009 by which Mr Purdon sent Mr Martin a further and final version of the Purdon Report which bore the date 22 September 2009. In addition, Mr Martin attached (marked D), a version of Mr Purdon’s final letter dated 22 September 2009 with underlining made by Mr Martin so as to show the text initially written by Mr Purdon. Mr Martin says that the areas of text in the document marked D where there is no underlining represent the additions made by him. In the letter to the applicant’s solicitors dated 25 July 2011 (Exhibit 22), Mr Martin describes it in this way:
The underline markings in the attached “Report” [earlier described in the letter by Mr Martin as the “so called Purdon Report”] define exact or like words as used, and in the general order presented in the letter received from Mr Purdon dated 13/9/2009. … Of importance to this response is that in most instances, although the text in the Report may appear entirely different from that presented in Mr Purdon’s letter, the intent of the reformatted content is the same, only it may have been altered to portray more comprehensively, information on the topic and or more technical input. Areas of text where there is no underlining are obviously additions, the points of which were topics of discussion prior to Mr Purdon sending me a copy of the letter.
42 In making the amendments of 20 September 2009 to Mr Purdon’s draft, Mr Martin gave evidence (as he had said in that part of the letter quoted above) that he did not change the “intent” of Mr Purdon’s letter. Mr Martin accepted that the version amended by him contained an observation in these terms which was not in Mr Purdon’s draft:
It is alleged that their [there] may be some collusion/confidential agreement pending between SAI Global and Plastec to embrace such matters [that is, product certification for the Plastec fittings according to ATS 5200.055]
[the emphasis in bold is the emphasis in the letter]
43 Mr Martin accepted that after the words, “Plastec swivel and expansion joints are fully WaterMark approved (ATS 5200.055)”, which were in Mr Purdon’s draft, Mr Martin added:
An untruth and misleading statement according to the investigations conducted.
44 Mr Martin thought that each of those additions may have derived from a conversation he had with Mr Purdon. Nevertheless, Mr Martin accepted that those assertions were not part of Mr Purdon’s formulation of the draft letter. Each addition was also recited in the final version of the letter. Mr Martin accepted that he did not have any issue with those observations being recited in the document and that he had no issue, subsequently, in attaching the document to other documents and circulating it widely.
45 A comparison of Mr Purdon’s draft letter with Mr Martin’s version as amended so as to beef up Mr Purdon’s draft shows that Mr Martin injected a significant degree of authorship into the formulation of the “Purdon Report”. A further comparison of those documents with the final version of the Purdon Report as sent to Mr Martin by Mr Purdon on 23 September 2009 shows that Mr Martin’s amendments were carried through into the final version. Mr Martin then attached that final version of the Purdon letter to the documents he distributed comprising the Martin material.
46 I find that Mr Martin was a significant author of the “Purdon Report” in its final form bearing the date 22 September 2009. I find that Mr Martin read and understood Mr Purdon’s draft of the document, amended the document significantly such that he became a joint author of it, and then adopted the content of the final version of the “Purdon Report” for the purpose of attaching it to the other documents comprising the Martin material for wide distribution. Before examining the detail of that distribution, the precise content of the statements made in the Martin material and the contextual chronology of Mr Martin’s dealings with Storm Plastics concerning that material and his correspondence with Standards Australia and South Australia Water Corporation and others, it is necessary to set out the applicable legislative and regulatory environment and the steps taken by Plastec within that environment.
The Legislative and Regulatory Environment
47 The legislative and regulatory environment of relevance to these proceedings is not a national regulatory environment in the sense that it derives from Commonwealth legislation or a co-operative scheme adopted under the forum of the Council of Australian Governments. However, the scheme is national in the sense that each State and Territory jurisdiction (including New Zealand) in a collaborative way has adopted legislation which is essentially in the same terms and each jurisdiction is guided by a body described as the National Plumbing Regulators Forum (the “NPRF”).
48 The particular legislative environment will be examined in the context of the Queensland instruments.
49 The Plumbing and Draining Act 2002 (Qld) (the “Act”) provides by s 145 that the Governor-in-Council may make regulations under the Act and by s 145(2) a regulation may be made called the Standard Plumbing and Drainage Regulation about any of the following work, or for inspecting such work: (a) plumbing and drainage work; (b) on-site sewerage work. Plumbing work is defined in the Dictionary to the Act to include installing, changing, extending, disconnecting, taking away and maintaining plumbing. Plumbing means, for water, an apparatus, fitting or pipe for supplying water to premises from a service provider’s infrastructure or a water storage tank and for carrying water within premises. For sewerage, it means an apparatus, fitting, fixture or pipe above ground, that carries sewerage on premises to drainage. It also means a greywater treatment plant or greywater diversion device.
50 Drainage work includes installing, changing, extending, disconnecting, taking away and maintaining drainage. Drainage means an apparatus, fitting or pipe, either above or below ground level that carries sewerage to a sewer, or to, within or from, an on-site facility, or greywater from a greywater treatment plant or greywater diversion device. Drainage also is defined to mean an on-site sewerage treatment plant.
51 Standard Plumbing and Drainage Regulation 2003 (Qld) (the “Regulation”) was adopted pursuant to s 145(2) of the Act. For the purposes of these proceedings the Regulation in force on 11 September 2009 is the relevant form of the Regulation. Part 2 of the regulation deals with the topic of “Compliance with particular codes and standards” and s 8A(1) provides that plumbing and drainage work “must comply with the PCA, sections A, B …, C and G.” [emphasis added] “PCA” means the Plumbing Code of Australia which term is defined to mean “the document in force from time to time called ‘Plumbing Code of Australia’ produced for all State governments by the National Plumbing Regulators Forum”. Clause 8A(3) of the Regulation provides that plumbing and drainage work complies with the PCA “only if the work satisfies the relevant performance requirements under the PCA”.
52 Section 8A(4) explains how compliance with the relevant performance requirements under the PCA can be achieved. It provides:
Compliance with the relevant performance requirements under the PCA can be achieved only by –
(a) complying with the relevant deemed-to-satisfy provisions under the PCA; or
(b) formulating an alternative solution under the PCA that –
(i) complies with the performance requirements; and
(ii) is shown to be at least equivalent to the relevant deemed-to-satisfy provisions under the PCA; or
(c) a combination of paragraphs (a) and (b).
53 It follows that plumbing and drainage work must comply with the relevant sections of the PCA and it will do so only if the work satisfies the relevant performance requirements of the PCA. Compliance with those performance requirements can be achieved only in one of three ways, either by satisfying the deemed-to-satisfy provisions, or by formulating an alternative solution that satisfies the performance requirements and is shown to be at least equivalent to the deemed-to-satisfy requirements, or by the combination of both.
54 The relevant version of the PCA for the purposes of these proceedings is the Plumbing Code of Australia 2004 (the “PCA”). The PCA recites that it is produced by the NPRF on behalf of each State and Territory government. The PCA recites that the NPRF is a National Policy Advisory Body with responsibility for the policy direction relating to technical matters associated with the PCA and derives from a co-operative arrangement between jurisdictions although it exercises no executive powers. As mentioned, s 8A(1) of the Regulation makes reference to mandatory compliance with sections A, B, C and G of the PCA for plumbing and drainage work.
55 Clause A0.2(a) of the PCA recites that sections B to F of the PCA contain the technical Performance Requirements for the design, construction, installation, replacement, repair, alteration and maintenance of water services, sanitary plumbing and drainage systems, stormwater drainage systems, heating, ventilation and air conditioning systems, and on-site waste water management systems.
56 Clause AO.2(b) recites that section G of the PCA contains the procedures for certification of plumbing and drainage products for authorised use in new installations, alterations, additions, replacement and repairs to existing installations.
57 Clause A0.4 provides that a plumbing solution will comply with the PCA if that solution satisfies the performance requirements. Clause A0.5 of the PCA provides that compliance with the performance requirements can only be achieved by complying with the deemed-to-satisfy provisions or by formulating an alternative solution which otherwise complies with the performance requirements or is shown to be at least equivalent to the deemed-to-satisfy provisions, or involves a combination of the two methods. Clause A0.5 probably contains a typographical error in using the word “or” as indicated in bold above. Clause A0.5(b) almost certainly was intended to use the word “and” reflecting the formulation in cl 8A(4)(b) of the Regulation.
58 Clause A0.7 provides that a plumbing solution which complies with the deemed-to-satisfy provisions, is deemed to comply with the performance requirements of the PCA for that solution.
59 Clause A1.1 contains a number of definitions. A deemed-to-satisfy provision means a provision which is deemed by operation of the PCA to satisfy the performance requirements of the PCA. A performance requirement means a requirement which states the level of performance which a plumbing solution must meet. A plumbing or drainage solution is defined to mean a solution which complies with the performance requirements of the PCA and is either a solution which complies with the deemed-to-satisfy provisions or complies with an alternative solution, or is a combination of both. An alternative solution means a plumbing solution which complies with the performance requirements other than by reason of satisfying the deemed-to-satisfy provisions. Drainage means any sanitary, liquid trade waste drainage or stormwater drainage system. Plumbing means any water plumbing, roof plumbing or sanitary plumbing system.
60 Some other definitions in Part A1 of the PCA might conveniently be now noted. Section G of the PCA, as already noted, contains the procedures for certification of plumbing and drainage products for authorised use in installations. A certification mark is defined to mean a WaterMark which is a trademark owned by an entity described as Standards Australia International Limited. Certain bodies described as conformity assessment bodies are authorised to conduct assessments leading to product certification. A Conformity Assessment Body (CAB) is defined to mean “an organisation registered with and approved by JAS-ANZ to conduct assessments leading to product certification and contracted with Standards Australia International to issue the WaterMark licence”. JAZ-ANZ means the “Joint Accreditation System of Australia and New Zealand”. Licence means:
… a formal document which covers the use of the WaterMark certification mark owned by Standards Australia and administered by the NPRF. It is granted to manufacturers whose materials or products are manufactured under a Quality Assurance Program endorsed by a CAB.
61 These proceedings concern, in part at least, references to an Australian Technical Specification. Specification is defined in these terms:
Specification means a specification that is approved by the NPRF through WS-031 and WS-014 as applicable to the material or product being submitted for authorisation. A specification may be an Australian Standard or specification listed in AS 5200 or a specification prepared by a CAB and manufacturer and is in a generic product Standard format, called an Australian Technical Specification (ATS).
62 That definition refers to WS-014 and WS-031. Each reference is a description of a Standards Australia, Standards New Zealand, Joint Technical Committee. The first deals with matters of “plumbing and drainage” and the second deals with “technical procedures for plumbing and drainage products authorisation” (cl A1.1).
63 It follows that for the purposes of the PCA, a specification is a document, by that description, approved by NPRF through the technical committees, applicable to material or a product submitted for authorisation and the instrument by which that question is determined may be an Australian Standard or a specification falling within AS 5200 or, alternatively, a specification prepared by a Conformity Assessment Body (“CAB”) and a manufacturer of that product, and is in a generic product standard format called an ATS.
64 I have already mentioned cl A0.7 which provides that a plumbing solution which complies with the deemed-to-satisfy provisions is deemed to comply with the performance requirements. Clause A1.3 of the PCA provides that a reference in a deemed-to-satisfy provision to a document under A1.2 of the PCA refers to the edition or issue together with any amendment listed in Table A1.3 and only so much as is relevant in the context in which the document is quoted. Table A1.3 sets out a Schedule of reference documents and one of them is a Standard described as AS/NZS 3500, 1998 which refers to “Plumbing and Drainage” and more particularly, in Part 2, 2003, “Sanitary plumbing and drainage”.
65 As mentioned, cl A0.7 brings about deemed compliance with the performance requirements of the PCA if a plumbing solution complies with the deemed-to-satisfy provisions. Consistent with cl A0.5, performance requirements might also be met through an alternative solution. That alternative solution must be assessed according to the assessment methods set out in A0.9. Clauses A07 and A08 deal with the two methodologies and cl A09 sets out the “assessment methods” (individually or in combination) to be used to determine that a plumbing solution complies with the performance requirements. Clause A0.9(a) contemplates an assessment by reference to evidence “to support that the use of a material or product, the design or form of construction meets a Performance Requirement or a Deemed-To-Satisfy provision as described in A2.2”. Clause A2.2 falls within Part A2 which addresses the topic of “Acceptance of Design and Construction”. Clause A2.1 describes eight categories of materials and products which are required to meet suitability requirements. Clause A2.2 addresses the topic of “Evidence of Suitability” and provides that “evidence to support that the use of a material, product, the design, form of construction or installation meets a Performance Requirement or a Deemed-to-Satisfy Provision” may be in the form of one or more of five possibilities under A2.2(a). The first two involve evidence of a certification mark for the relevant product and/or a current licence issued within the requirements of Part G of the PCA.
66 Part G1 of the PCA addresses “certification and authorisation”. It applies to all plumbing and drainage materials and products that are required to be authorised under Part A2 of the PCA. Clause G1.2 recites that product authorisation is achieved through the application of the certification mark in accordance with the rules of the WaterMark Certification Scheme (WMCS) and, in consequence, the listing of the material or product on the WaterMark product database. Clause G1.4 is in these terms:
A material or product that has the certification mark and is listed on the WaterMark Product Database is recognised by authorities having jurisdiction as being authorised for use in a plumbing or drainage installation.
[emphasis added]
67 The Certification Process is set out at cl G1.5. Clause G1.5 recites that the certification process ensures that materials or products are manufactured in compliance with the relevant specification and in compliance with the requirements of the WMCS. Clause G1.5.2 provides that the materials and products listed in Table A2.1 must be certified at the minimum certification level nominated in the Table. It is common ground that the Plastec fittings required certification in accordance with Part G of the PCA.
68 Certification is addressed at cl G1.5.4 of the PCA which is relevantly in these terms:
G1.5.4 CERTIFICATION
G1.5.4.1 Certification Mark
The WaterMark is issued by a CAB subject to material or product compliance with the relevant specification and the terms and conditions in the certification licence agreed to between the CAB and the Approved User.
69 Accordingly CAB’s undertake assessments to determine whether a particular plumbing or drainage solution complies with the performance requirements of a specification as defined, which may engage an assessment against an Australian Standard or an Australian Technical Specification, for the purposes of A1.1 of the PCA. That assessment might result in a WaterMark Certification coupled with a licence for the purposes of Part G of the PCA.
70 There is another mechanism by which a party might engage with the PCA and propose a plumbing solution that meets the performance requirements of the Code. Aspects of that engagement involve demonstrating an alternative solution that complies with the performance requirements of the PCA and is equivalent to the deemed-to-satisfy provisions. I do not propose to examine the detail of that aspect of the legislative scheme. Some aspects of the definitions that apply to the alternative path (but not all definitions) have been already addressed. However, the present proceedings concern contentions by Mr Martin about the efficacy, utility and appropriateness of the certifications Plastec obtained for the Plastic fittings under the legislative and regulatory environment already described.
71 The practical effect of the legislative and regulatory scheme as described ultimately reduces to the following propositions.
72 First, if someone (a proponent) proposes to introduce into the market a product or material that must be certified at a minimum level by reference to a particular Australian Standard or Australian Technical Specification, the proponent will apply to a CAB and seek to demonstrate that a proposed plumbing or drainage solution satisfies the relevant performance requirements of the PCA as the solution complies with the deemed-to-satisfy provisions of the PCA.
73 Second, if a CAB is so satisfied according to the assessment methods described in the PCA (particularly having regard to Part A2 and Part G), the CAB might so certify. A licence might be granted in compliance with Part G of the PCA.
74 Third, a product or material might achieve product authorisation entitling the proponent to apply a certification mark in accordance with the WMCS with the result that any product or material that has such a certification mark and is listed on the WaterMark Product Database is recognised by authorities as authorised for use in a plumbing or drainage installation.
75 Fourth, once a CAB certifies the proponent’s product or material as compliant with the relevant Australian Standard or ATS, and authorises or grants the proponent a licence to use the WaterMark certification mark, the product or material is deemed to comply with the performance requirements of the PCA and thus the Regulation, cl 8A. Because the product or material then complies with the PCA, the Regulation and the Act, the proponent may lawfully supply the product or material for use in a plumbing installation, and users of the product or material may rely upon the certification by the CAB to the relevant Australian Standard or ATS, and particularly the use of the certification mark, as evidence of the product’s compliance or the material’s compliance with the relevant performance requirements of the PCA.
The steps taken by Plastec within the legislative and regulatory environment concerning the Plastec fittings
76 Mr Sidney Hawthorne is a Director of Plastec.
77 Mr Hawthorne has been actively involved in the company’s affairs from its incorporation. He was also involved in the business affairs of the same undertaking conducted by Plastec’s predecessor entity. The undertaking has been conducted for approximately 17 years in all. Mr Hawthorne commenced the business in 1992 through the vehicle of a company also called Plastec Australia Pty Ltd which Mr Hawthorne describes as the original Plastec company.
78 In 2000 that company changed its name to STD Australia Pty Ltd. The applicant was then incorporated and took a transfer of the name Plastec Australia Pty Ltd. The present applicant is an entirely different entity from the original Plastec entity. These changes occurred in 2000 as a legacy of settlement arrangements arising out of Mr Hawthorne’s divorce from his then wife. As a consequence of those arrangements, the new entity was incorporated to assume and conduct the former business undertaking. The business of making and selling plumbing products now conducted by Plastec is a continuation of the business commenced by Mr Hawthorne in 1992.
79 Mr Hawthorne gives evidence that he was engaged in the steps taken by Plastec and its predecessor to obtain certification of products to the relevant Australian Standard and obtain WaterMark certificates of approval commencing in 1996. He says that the business undertaking first began the process of obtaining such certifications and approvals for its plumbing products in that year. He has remained engaged in that process throughout. At para 19 of Mr Hawthorne’s affidavit sworn 22 February 2011 (Vol 4, Tab 15, Exhibit 7) Mr Hawthorne says that the Plastec joint fittings the subject of this proceeding were WaterMark certified to Australian Standard 2887 in 1996.
80 At paras 36 and 37, Mr Hawthorne explains that matter a little further.
81 Mr Hawthorne says that Plastec has been making and selling plumbing fittings made from ABS or ASA for joining to PVC-U since March 1996 and that it has been making and selling plumbing fittings made from ABS and ASA for installation in underground drainage systems that may be connected to existing drainage systems using PVC-U piping or fittings since 1997. Mr Hawthorne says that Plastec has obtained WaterMark certification for plumbing products including its swivel and expansion joints. In support of that proposition, Mr Hawthorne annexes (SH-34) a WaterMark Certification Schedule drawn from the database of a CAB described as Australian Certification Services Pty Ltd (ACSPL), and makes reference to three other documents (SH-15, SH-16 and SH-17) being annexures to Mr Hawthorne’s affidavit sworn 4 November 2009 (Vol 4, Tab 13, Exhibit 7).
82 Those four documents reveal these matters.
The WaterMark Certifications
83 A search undertaken on 2 November 2009 of the database of WaterMark Certifications listed on the database of a CAB described as SAI Global reveals that Plastec’s adjustable swivel pipe joiner and its expansion pipe joiner components are WaterMark approved under Licence Number WMKT00239. The original certification is described as having been obtained on 3 December 1996 with the most recent certification or current certification dating from 17 July 2007. The expiry date of the licence is recorded as 16 July 2010. The products are recorded as certified to an Australian Technical Specification 5200.040-2005 described as “Technical Specification for plumbing and drainage products – Waste pipe connection outlets and gratings, separate or integrated” and, more particularly, Australian Standard “AS2887:1993 Plastics waste fittings” (SH-17).
84 SH-15 is a Certificate of Conformity issued by Australian Certification Services Pty Ltd to Plastec by which ACSPL “grants to the WaterMark User: [Plastec] the right to use the WaterMark as shown above (the logo) in conjunction with the Certificate No. [23003] on product/s as identified in the WaterMark Schedule and as listed on the WaterMark database [website described] which have been shown to comply with the relevant Standard/s and level of certification referred to below”. The Certificate recites that the WaterMark user is granted a licence to use the WaterMark subject to the rules governing the use of the WaterMark. The issue date is 17 April 2009 and the expiry date is 16 April 2014. The relevant particulars endorsed on the certificate are these:
Product Type: Fittings
Evaluated to: ATS5200.055:2008 Technical specifications for plumbing and drainage products Part 055:Plastics fittings – Connectors with flexible intermediate joints for drainage and sewerage applications
Level of Certification: WaterMark Level 1
85 The WaterMark Certification Schedule related to SH-15 is the document at SH-16 which identifies the four Plastec fittings the subject of the proceeding as the products so certified by ACSPL to ATS5200.055:2008.
86 SH-34 is a copy of a WaterMark Certification Schedule dated 20 August 2010 issued by ACSPL setting out the certification of the Plastec fittings to AS 2887:1993, ATS5200.040:2005 and AS/NZS1260:2009 (PVC pipes and fittings for drain waste and vent application). Certificate No 239 relating to the Plastec fittings was initially issued on 9 June 2009, and the certificate records an expiry date of 23 December 2015. Certificate No 23003 issued by ACSPL on 17 April 2009 certified the Plastec fittings to ATS5200.055:2008 and records an expiry date of 16 April 2014.
Mr Casey’s role
87 Mr William Casey is the National Sales and Marketing Manager for Plastec. Mr Casey also had a role to play in the certification process. He explains that at the time that the Plastec fittings were being developed, SAI Global was the body Plastec consulted about compliance issues for its products with relevant Australian Standards. SAI Global advised Plastec that the Standard applicable to the Plastec fittings was Australian Standard AS 2887:1993. As a result Plastec, through SAI Global as a CAB, applied for certification that the Plastec fittings conformed to that Standard. Certification was subsequently obtained from SAI Global and Mr Casey notes SH-17 to Mr Hawthorne’s affidavit. In addition, Mr Casey annexes as (WC-10) to his affidavit sworn 19 March 2010 (Vol 2, Tab 7, Exhibit 7) a letter from SAI Global dated 17 October 2007 (from Mr Robin Richards, Assurance Services, SAI Global) to Plastec in these terms:
This is to confirm that SAI Global has recently included your new swivel joint and telescopic ABS fittings in your Water Mark licence no. WMKA0239 to AS2887.
This was based on comprehensive laboratory testing performed to standards relevant to their installation and use.
Mr Greig, AS 2887 and ATS5200.055:2008
88 Mr Paul Greig gave the following evidence.
89 Mr Greig is the General Manager of ACSPL. He holds a BSc (Hons) in ceramic engineering. He has held the position of General Manager of ACSPL since November 2007 and from January 2008 Mr Greig was responsible within ACSPL for providing and managing a range of technical co-ordination services to clients in the plumbing industry. From March 1992 to November 2007 he held the position of Project Co-ordinator-Plumbing/General Manager-Product Certification/Group manager-Water/Gas-Product Certification for SAI Global and entities described as QAS Pty Ltd and SAQAS Pty Ltd.
90 Mr Greig is very experienced in these fields of technical compliance and the management of compliance and certification activities.
91 Mr Greig explains that ACSPL is accredited to provide certification services as to whether plumbing products comply with Australian Standards and Australian Technical Specifications enabling a user to obtain the right to apply the WaterMark Certification to products, in accordance with the Joint Accreditation System of Australia and New Zealand by the body known as JAS-ANZ. An entity seeking to provide certification services must also obtain an approval from Standards Australia. ACSPL has that approval.
92 From March 1992 to November 2007 Mr Greig held a variety of senior positions with the three companies mentioned above. QASPL and SAQSPL were operated as divisions of Standards Australia and provided certification services for a range of products including plumbing products. SAI Global also formed part of Standards Australia. Mr Greig says that a few years ago Standards Australia elected to establish certification services as a separate and independent activity with the result that SAI Global was separated as a stand-alone or independent company. It continues to offer the same sort of certification and accreditation services as previously offered.
93 SAI Global is considered by industry to be the peak product certification body in Australia as were the predecessor entities or divisions of Standards Australia. These services have been conducted for approximately 50 years.
94 So far as the plumbing industry is concerned, Standards Australia develops and SAI Global publishes particular Standards for plumbing products. Standards Australia develops Standards using a consensus model in which participants of many kinds in the plumbing industry can make submissions to Standards Australia about developing new Standards, variations to Standards or the replacement of existing Standards. Standards Australia is assisted by technical committees which are usually comprised of representatives of plumbing industry participants which Mr Greig describes generally as “stakeholders”. Draft Standards are prepared and circulated amongst stakeholders by the committees for comment and amendment. Ultimately once the consensus process has been undertaken and Standards have been drafted and approved in final form, Standards Australia will publish a Standard for a particular plumbing product or group of plumbing products.
95 The certification process for plumbing products is known as the WaterMark Certification Scheme, already described as WMCS.
96 Under the WMCS a CAB such as ACSPL can be requested by a plumbing manufacturer to examine and test the manufacturer’s particular product or a group of products to determine whether or not those products comply with a Standard relevant to those products. If that examination and testing reveals that the products comply, a CAB has authority to issue a WaterMark Certificate which certifies that the relevant product (or group of products) complies with a Standard nominated in the certificate. If a WaterMark Certificate issues, the manufacturer is licensed to state on the certified product that the product is WaterMark certified, with a reference to the Standard to which the certification applies. The licence to apply the WaterMark certification to the product is designed to give a plumber who proposes to install the product in a particular system assurance that the product is certified to the relevant standard and that in using it the plumber can be confident that the product complies with the relevant performance requirements required by the Standard.
97 Mr Greig says that over the last 18 years in which he has been engaged in the certification profession, he has acquired a detailed knowledge of Standards relevant to the plumbing industry.
98 Mr Greig says that he knows from his employment with SAI Global that SAI Global issued a WaterMark Certificate for the Plastec fittings certifying them as compliant with AS2887:1993, in approximately mid-2007. Mr Greig took part in the review process and was consulted concerning the certification application in his role as the Technical Manager of SAI Global. Mr Greig says that at the time WaterMark Certification was granted by SAI Global for the Plastec fittings to AS2887:1993, that Standard was considered to be the most relevant Standard applicable to the fittings and it was not, at that time, SAI Global’s policy to certify a product against multiple Standards.
99 Mr Greig recalls that in 2007 he had a number of meetings with representatives of Standards Australia in his role as a member of a technical committee described as WS-031 which had responsibility (or oversight) for certification of plumbing products. Mr Greig had discussions with committee members and regulators which resulted in an agreement amongst committee members for the development of an Australian technical specification for swivel/expander fittings regardless of the plastic materials used in manufacture. The project to develop a technical specification was allocated the project number ATS5200.055. Mr Greig recalls that drafts of the specification were developed in the course of meetings of committee members and also with industry representatives. Mr Greig says that the draft of ATS5200.055 was not progressed by reason of events including Mr Greig’s departure from SAI Global in November 2007 and the departure of Standards Australia’s own representative on committee WS-031.
100 Until 2005, SAI Global enjoyed a monopoly in providing WaterMark certification services in Australia. Private companies then became licensed to provide such certification services.
101 ACSPL was approached by Plastec in early 2008 to seek assistance in progressing the draft of ATS5200.055 through the WS-031 Committee process. Mr Greig says that it is quite common practice for plumbing manufacturers to engage a company such as ACSPL to assist in the preparation of a suggested Australian Standard or a technical specification for submission to Standards Australia or its relevant technical committees for consideration. The WMSC expressly contemplates that a CAB undertake or conduct steps towards developing a proposed Standard, an amendment to a Standard or a new technical specification. The CAB is the vehicle through which a proponent liaises with Standards Australia to demonstrate the need for or utility of a new Technical Specification or Standard. The process involves a product manufacturer as proponent submitting a proposed or draft ATS or Standard for review by the technical committees. After review, the ATS or Standard will be submitted to Standards Australia for consideration and the making of a decision to adopt (or not) the ATS or Standard. Mr Greig says that this was the entirely orthodox process followed by Plastec in putting submissions to Standards Australia for the adoption of ATS5200.055, notwithstanding that the project to develop a new ATS was initially raised by committee WS-031 itself.
102 Mr Greig says that because swivel/expander type plumbing fittings were a fairly new sort of product, the consensus within the technical committee was that a new Technical Specification should be developed specifically directed to plumbing fittings of that type, regardless of the material out of which the fitting might be made. Mr Greig says that at the time that a need to publish a Standard specific to these types of fittings was identified, it was also identified that there was a need to deal with issues regarding joining of similar but not necessarily identical materials, for example, PVC-U and ABS.
103 Mr Greig says that ATS5200.055:2008 was developed through a process known as an “unlisted process”. This process is particularly designed to deal with emerging technologies or other circumstances where the lengthy processes (some years of engagement) involved in the development and adoption of an Australian Standard are not able to be undertaken. Sometimes, those processes leading to an Australian Standard will continue to be engaged with a view to transitioning from an Australian Technical Specification to what Mr Greig describes as “a full blown Australian Standard [as a] replacement”. However, Mr Greig says that this does not always occur and while an Australian Standard relevant to the subject matter of an ATS is being developed, the ATS has “full force and effect and for all legal and practical purposes has the same force and effect as a full-blown Standard”. Although, of course, Mr Greig cannot give evidence about the construction of the legislative and regulatory instruments, I have had regard to Mr Greig’s views about the force and effect of an ATS simply for the purposes of recognising the attitude and approach adopted to an ATS from a person with 18 years contextual experience in the business of providing certification services.
104 The legislative instruments I have already described make it plain that certification to an Australian Technical specification has the same force and effect as certification to an Australian Standard in terms of compliance with the performance requirements of the PCA and a proponent’s lawful entitlement to supply the product or material for use in a plumbing installation.
105 Mr Greig says that ATS5200.055:2008 was developed to set out the requirements for expander/swivel type plumbing fittings and, specifically, to cover the joining of such fittings where they are made out of one type of plastic material, to a fitting made out of another different type of material and, in particular, to address the joining of plumbing fittings made from ABS to plastic pipe and fittings made from PVC-U.
106 ATS5200.055:2008 was approved by the Council of Standards Australia on 7 August 2008 and was published on 21 October 2008.
107 Mr Greig and ACSPL conducted a certification process of examining the Plastec fittings to determine whether they conformed to the requirements of ATS5200.055. As already indicated, ACSPL so certified the Plastec fittings. Mr Greig points out that it is important to appreciate that the adoption of ATS5200.055 was not directed to the specific or individual products of Plastec. The technical specification is just that. It is an Australian Technical Specification to which any manufacturer of products might subject their products to certification according to the requirements of ATS5200.055.
108 It follows from this discussion that at the moment in time when Mr Martin elected to distribute the Martin material on and from 22 September 2009, the Plastec fittings were the subject of WaterMark Certification and a relevant licence from SAI Global (and had been so from at least 17 October 2007 according to the letter from Mr Robin Richards) as to compliance with AS2887:1993 (and also compliance with ATS5200.040-2005), and also the subject of WaterMark Certification and a relevant licence from Australian Certification Services Pty Ltd from 17 April 2009 as to compliance with ATS5200.055:2008, which certifications entitled Plastec to lawfully supply the Plastec fittings for installation as fittings which satisfied the performance requirements of the PCA for those fittings.
Mr Perham and SAI Global
109 Mr Perham gave this evidence.
110 Mr Perham is a plastics engineer by professional qualification.
111 He commenced working for Plastec in late 1995 or early 1996. His roles include designing new Plastec products to be introduced into the market, overseeing and implementing Plastec’s Quality Assurance Program (“QA program”), and accepting responsibility as Plastec’s Operations Manager for running and overseeing Plastec’s production and manufacturing facility.
112 Mr Perham was part of a team of three that designed the Plastec swivel and expansion joint, that is, the Plastec fittings.
113 In the role of implementing and overseeing Plastec’s QA program, Mr Perham has primary responsibility for investigating complaints about Plastec products from customers. If a complaint appears to be warranted and requires further investigation, Mr Perham undertakes that investigation and reports on the outcome. The report is recorded in a record described as Plastec’s “Problem Log”. The QA program requires annual independent external audits of Plastec’s manufacturing processes. They are undertaken with Mr Perham providing whatever assistance might be required by the auditor.
114 A condition of the WaterMark Certification and licensing arrangement is that Plastec establish, document and maintain a compliance system that ensures the Plastec fittings are manufactured in a way that conforms to the Standards applicable to the products the subject of the certification and licence. The compliance system forming part of the QA program is set out in the QA manual. The manual was first drawn up in 1996. It is revised annually. At the date of swearing Mr Perham’s affidavit filed 23 February 2011 (Vol 5, Tab 18, Exhibit 7) the latest version of the QA manual was the 2010 version. In that affidavit, Mr Perham sets out the eleven major procedures required to be undertaken for the purposes of the QA manual.
115 ACSPL is Plastec’s CAB. It carries out regular audits as required under the WaterMark Certification and Licensing Scheme.
Mr Perham and the evolution of the Plastec swivel joint
116 Mr Perham says that the sequence in the development of the Plastec swivel joint is this.
117 The first model of the swivel joint was released in 2007 (Model 1). A second model of the joint was then released (Model 2) which had two versions described as a “pipe version” and a “socket version”. Model 1 and Model 2 (both the pipe and socket versions of Model 2) of the Plastec swivel joint were sold concurrently from 2007 until the release of Model 3.
118 Mr Martin contends that Model 1 was withdrawn because it failed to pass a “Clear Bore” test described in para 5.4.1 of AS-NZS1260. Mr Perham says that where the test applies, it measures the product’s ability to accept passage of a sphere of the relevant diameter as set out in a table. Mr Perham says that Model 1 did not fail such a test and it was not “recalled”. Mr Perham says that although Mr Martin asserts that Model 3 was introduced because earlier models of the swivel joint were experiencing leakage problems, Model 3 was introduced in response to consumer responses. Plumbers had told Plastec that there was a need for a swivel joint that “moved easily when a plumber inspected it”. In order to provide that flexibility of movement on inspection, Mr Perham says that he redesigned the swivel joint to bring into existence Model 3. Mr Perham describes the challenge as one of making the joint not so stiff that it could not move on inspection but not so loose as to be moving during installation.
119 Mr Perham says that Model 3 went into production in August 2009. Mr Perham says that Model 3 had two further modifications made to it. Mr Perham describes Model 3, for this purpose as Model 3A. A modified version, described as Model 3B, was released which incorporated an additional “O” ring (sometimes called an elastomeric seal). The additional O ring is effectively a backup O ring. Mr Perham says that this additional O ring was not introduced to deal with contended leakage. It was an adaptation that could be incorporated “with very minimal production cost” as an additional feature. At the same time, Plastec changed one of the seals to a “chevron shaped seal”.
120 Mr Perham says that a modified version Model 3C was then released.
121 Model 3C introduced a further O ring. This modification was adopted in response to complaints made by plumbers that when the swivel joints were being vertically installed (but prior to the back-fill occurring) the joint would activate and the vertical installation would “fall out of plum”. The changes to the joint had addressed the earlier comments of a plumber urging more flexible movement to be adopted for inspection when purchasing the joint, but another problem had been created of too much flexibility affecting installation. Accordingly, another O ring was incorporated to address the installation issue, according to Mr Perham. Mr Perham says that at the time Model 3C was developed there was no evidence or suggestion of a leaking fitting. The point of the change was simply a modification to enhance the product and address the installation issue. Plastec continues to sell Model 3C. Mr Perham says that although Mr Martin talks about a Model 4, Plastec has not introduced a Model 4. The product Mr Martin describes as Model 4 is, according to Mr Perham, an entirely separate product called a “Swivel and Expansion Combination Joint” (with Product Codes 16370 and 16365).
122 Mr Perham says that the photographs incorporated in the University of South Australia Report are examples of Plastec’s Model 2, socket type Plastec swivel joint.
Responses by Plastec to the contention that the University of South Australia Report demonstrated that the Plastec fittings leak
123 In describing the evolution of the models of the Plastec fittings, Mr Perham observes that these models did not evolve in response to leaks in earlier models. Mr Hawthorne says that he cannot recall Plastec receiving a complaint from a plumber, a plumbing retail store or other consumer that the Plastec swivel and expansion fittings were not suitable for underground pipe installation. Mr Hawthorne says that Plastec maintains a “Problem Log” and of all the thousands of swivel joints sold by Plastec only one entry has been made in the Problem Log of a swivel joint that leaked. That matter was investigated and Mr Hawthorne says that the leakage was found to have been caused by a plumber applying excessive amounts of primer and solvent cement in the jointing process that then penetrated internal parts of the joint and damaged its internal sealing. The leak was due to the method of joining by the plumber. There was no design or manufacturing defect. Mr Hawthorne says that he is unaware of any complaints by consumers of a failure in a joint made between a Plastec ABS/ASA fitting and a PVC product where the joint has been created using Type N solvent cement. Moreover, Mr Hawthorne says that Plastec has never received queries from installers of its swivel and expansion joints or any of its other ABS/ASA products asking Plastec how to use Type N solvent cement for joining Plastec fittings to a PVC pipe or fitting. Mr Hawthorne says that a “core part of any plumber’s skill is the use of solvent cement”, and joining ABS/ASA fittings to PVC fittings “is such a basic part of a plumber’s skills, I would not ever expect there to be … any such queries”.
124 Mr Hawthorne also says that although the majority of the swivel and expansion joints are used in installations that are below ground, they can also be used and are used in above ground situations. The Plastec fittings are primarily intended to be laid in underground situations to provide low-pressure drainage for sewerage or waste water.
125 Mr Perham describes an incident at the testing laboratory of Vipac Engineers and Scientists (“Vipac”) in Melbourne. Mr Perham attended Vipac’s laboratory with Mr Greig to meet with Mr Adam Wegmann of Vipac. In the course of undertaking a testing program to provide an expert report in these proceedings, Vipac had detected what appeared to be a leak from one of the test samples of a Plastec swivel joint that Vipac had prepared. The test in question was a vacuum infiltration test. Mr Perham says this was of great concern to Plastec as Plastec had not had any complaints from customers about leaking joints apart from the one matter earlier mentioned. The test sample which had demonstrated a leak was cut open by Mr Wegmann in the presence of Mr Greig and Mr Perham. The Plastec swivel joint has two O ring seals inside it. One is used to prevent leakage from the swivel joint to the exterior when there is positive pressure inside the joint and its associated piping. The other O ring is used to overcome possible effects of negative pressure, that is, where there may be a partial vacuum inside the swivel joint and its associated piping which might lead to water being sucked or pushed into the joint from its surrounding environment. In order to test the joint, Vipac had bonded a length of pipe to each side of the swivel joint. The length of pipe on either side of the joint had been bonded by blue solvent cement. When the sample was cut open, Mr Perham said that he could see that a quantity of solvent cement had been allowed to dribble down and then harden on the inner face of the ball section of the swivel joint. The inner face moves over the corresponding outer face of the socket part of the swivel joint and, in particular, across the two O rings placed inside the joint to prevent leakage under positive or negative pressure. Mr Perham felt the inner surface of both the ball and of the socket parts. He could not see any imperfections on the ball or socket and no evidence of blemishes or defects in the O rings. Both O rings were sitting properly in the machined grooves into which they fit. Mr Perham concluded that the leak was not due to any defect in manufacture or imperfections in the O ring seals but rather due to drips of cured and hardened blue solvent cement sitting under the O ring seal designed to overcome negative pressure.
126 Mr Greig took the same view about the matter, according to the inspection and measurements he took as set out in his affidavit (Vol 3, Tab 10, Exhibit 7).
127 Mr Hawthorne refers to tests undertaken by CSIRO of the Plastec DN100 swivel fitting. That fitting was subjected to the test required by ATS5200.055:2008. No sign of leakage or structural failure was observed according to the CSIRO Report dated 14 October 2009.
128 At para 49 of Mr Greig’s affidavit (Vol 3, Tab 11, Exhibit 7), Mr Greig describes the additional testing he required to be performed to stress test the Plastec fittings to see if they might leak. He says that he instructed additional tests to be done “to such an extent so as to see if a leak could be created” [emphasis added]. He says that this testing was of a nature that fell “outside the testing requirements of ATS5200.005”. He says this:
This involved rotating the swivel joint whilst it was under full pressure, something which would never occur in an installation for which this product has been certified. The fact that I observed a few droplets over a period of time whilst the product was being stressed under the worst possible testing condition was not in my view of any consequence. The reason is that where the words in Standards or ATS are not defined, it is up to the CAB to interpret these words against the product and its intended use. “Leak” is not defined in the ATS. When the swivel joint was tested in my presence in accordance with the tests prescribed in the ATS, no water droplets at all were visible. When it was tested in an extreme way, some water droplets were visible. It was not clear to me whether those droplets constituted water egress or condensation but because there being such a minor amount, and because the test was not one the product was required to meet in any event, I concluded that the product does not leak. That is what [Mr Greig described as] “acceptable norms”.
[emphasis added]
Mr Perham and QTL
129 One of the further roles performed by Mr Perham concerns his role at an entity described as Queensland Testing Laboratory Pty Ltd (“QTL”). Mr Perham says that he has also been “employed by QTL on and off for various periods totalling three years”. QTL conducts a testing facility to test the characteristics and particularly the performance characteristics of products or materials under the set of conditions relevant to the test or range of tests required to be undertaken.
130 QTL is accredited by a body described as National Association of Testing Authorities (“NATA”) as a testing facility that conducts a process for undertaking tests according to a best practice process adopted by NATA. In order to obtain NATA accreditation, QTL was audited by two process auditors who examined the protocols and procedures adopted by QTL in undertaking its testing activities. The auditors examined all procedures including the set-up procedures, the manuals developed for undertaking test processes and the conduct of tests.
131 The requirements for accreditation include establishing processes for ensuring that all instruments are accurately calibrated and certified by another NATA certified laboratory by sending the instruments away for calibration assessment and receiving them back with a certification document, recognising that the frequency of instrument assessments depends upon the nature of the instruments (some electronic instruments require calibration testing every six weeks – other instruments may require assessments every six months or yearly or longer); reviewing personnel, their skills, qualifications and experience; and, examining closely the detail of the procedures and the documentation supporting procedures reflected in the manual commencing from the receipt of the product or material to be tested through to handling of the article, testing it, generating a report, approving the report and sending the report to the commissioning party. All of these activities are audited as part of the initial accreditation process to ensure that the procedures reflect NATA approved processes for the conduct of a NATA accredited test laboratory.
132 The auditors were satisfied that QTL processes reflected NATA protocols. NATA accreditation was granted.
133 In order to maintain NATA accreditation, QTL must ensure that all of these processes continue to be complied with so that auditors can later select one or more tests (and test result data) and then trace back from the test through each step in the process to examine who undertook the test, the instruments used, the certification as to calibration of the instruments, the testing methodology, the particular test protocol required by a relevant Standard (recognising that the majority of the tests are undertaken to demonstrate compliance with an Australian Standard issued by Standards Australia), the receipt and book-in procedures and the paper trail documenting each step in the process.
134 A typical example of the process deployed is this.
135 When QTL’s Client Management Services personnel engage with a customer for the testing of a product, a work authorisation form is signed by the customer. QTL then brings a job card into existence describing the product. A number is assigned to the job and a sample number is allocated to the article (that is, a test number and a sample number). A test requirement sheet is also brought into existence and those documents are sent to the laboratory to await receipt of the sample to be tested. Sometimes the sample is available before those documents are generated. Other times, the sample will be delivered later in time by the customer to the laboratory. Once the sample arrives at QTL it is then “booked-in” or recorded against the allocated sample number and the test job number. Once these steps have been taken, the article is entered into a work schedule to determine when the testing of the article can occur. It is also assigned to an individual who will undertake the test. The article is also allocated to particular equipment or instruments to be used in the conduct of the test. The test or tests are then done according to the Works Schedule by the assigned person using the allocated equipment.
136 The report arising out of the test is given to an office administrator who types it into a NATA approved layout or format for a report issued by a NATA certified laboratory. The report is then assessed by Mr Simon Clarke who either accepts or rejects the report (or elements of it). If further work is required, that work is then undertaken by the laboratory. Once done, Mr Clarke further considers the report concerning all of the work. If no further work is necessary, the report is signed by Mr Clarke and a reviewing officer. The report is then sent to the customer. The tested article is returned to the customer but if not collected by the customer, the article is destroyed after three months. Examples of products tested (or tests undertaken) include taps, spa pools, toilets, toilet systems, pipe tests of various kinds, heat deflector tests, low temperature tests of plastics, and many others. QTL has a customer base of approximately 30 to 40 regular customers requesting tests.
137 Mr Perham has discharged the role of being a signatory to laboratory tests prepared by QTL in this process. Depending on the material or product being tested, Mr Perham’s qualifications may be appropriately engaged so as to render him a person qualified to examine and verify a particular test report consistent with the NATA approval protocols governing the verification of a test report emanating from a NATA approved laboratory.
138 This is the role performed by Mr Perham from time to time at QTL.
SAI Global and Plastec
139 As to Plastec’s swivel and expansion joints, Mr Richards, the Manager of Assurance Services at SAI Global advised Mr Perham that Australian Standard 2887 was the appropriate Standard to which the Plastec fittings made from ABS and ASA ought to be certified.
140 Mr Richards also recommended that a new Australian Technical Specification ought to be developed for ABS and ASA products specifically.
141 As part of the process of seeking certification of the Plastec fittings to AS 2887, Plastec obtained test results from QTL’s laboratory where the Plastec fittings were subjected to the range of tests required by AS 2887 and any referenced Standard required to be applied by AS 2887 or a Standard regarded as providing reliable performance indicators for the Plastec fittings. A test report was issued by QTL concerning tests undertaken on Plastec’s swivel connector joint, dated 24 May 2007. A further report was issued on the products on 10 August 2007. Each report was prepared by Simon Clarke and reviewed by Rowan Lee. Those reports are AP-5 to the affidavit of Mr Perham (Vol 5, Tab 19, Exhibit 7). The test reports were provided to SAI Global. Mr Richards requested further tests of the expansion and swivel joints and those tests were undertaken by QTL. Two further reports were issued in respect of the Plastec fittings on 25 September 2007 (AP-6). Each report was prepared by Simon Clarke and reviewed by Rowan Lee. The reports were provided to SAI Global.
142 SAI Global certified the Plastec fittings to AS 2887 and after the certification occurred, SAI Global sent Plastec the letter dated 17 October 2007 quoted at [87]. Each of the four reports show that the products passed or complied with each of the tests to which it was subjected. In all 19 tests were undertaken. Aspects of these tests will be discussed in due course.
AS 2887
143 One of Mr Martin’s central contentions is that AS 2887 simply does not apply to the Plastec fittings because, in particular, the swivel joint fitting is a “drainage fitting” and AS 2887 applies only to “waste fittings”. Mr Martin says that AS 2887 does not realistically apply to drainage pipe fittings. Mr Hawthorne considers, as an experienced industry participant, that AS 2887 has application to the Plastec fittings or at least it cannot be considered that fittings serving the purpose they address are excluded from AS 2887. Mr Greig says that it is generally accepted in the certification industry and by Standards Australia that AS 2887 applies to fittings engaging plumbing drainage systems.
144 Mr Greig contends that AS 2887 is not limited in the way Mr Martin contends. The point of departure between Mr Martin’s views and those of Mr Hawthorne and, more particularly, Mr Greig, might well be, as Mr Greig points out, that expander/swivel joints such as the Plastec fittings emerged or were developed after the publication of AS 2887. The then current version of that Standard was dated 1993 and at that moment in time swivel/expander joints had not been developed. It follows that such fittings were not expressly addressed in the language of AS 2887 but that did not lead to a conclusion within industry and within those participants in the provision of certification services that AS 2887 could not apply to Plastec drainage fittings which happened to exhibit features later understood as expander/swivel joint features.
145 The tests undertaken by QTL which were submitted to SAI Global involved a number of tests by reference to an applicable Standard described as AS/NZS1260 and in particular high pressure stress relief tests, hydrostatic pressure tests and liquid infiltration tests among others. Mr Martin contends that these tests arising out of AS1260:2002 (the most recent version being AS1260:2009) are inappropriate or not sufficiently robust as AS 1260 does not apply to pipes and fittings for drain waste and vent applications and moreover AS 1260 is restricted to PVC-U plastic materials. It is common ground between the parties that AS 1260 does not apply to the Plastec fittings because it addresses simply PVC-U materials. However Mr Greig gives evidence that notwithstanding that AS 1260 addresses only PVC-U materials, the test procedures described in that Standard identify the types of tests that usefully determine the performance characteristics of relevant fittings and those tests are regarded as sufficiently robust and desirable that they have been adopted expressly in ATS5200.055. Moreover, not only does ATS5200.055 adopt the relevant tests set out in AS 1260, but additional tests specifically directed to examining the performance characteristics of swivel and expansion joints have been adopted.
146 As to the application of AS 2887, I accept that participants in the provision of certification services for products and materials as to compliance with Australian Standards, accepted that AS 2887 was not limited in the way Mr Martin contends. In any event Plastec sought and obtained from SAI Global, WaterMark certification to that Standard on the basis of QTL test data accepted by SAI Global as appropriate to that question, and SAI Global granted a licence which conferred a lawful right upon Plastec to supply the Plastec fittings for installation in plumbing and drainage systems.
ATS5200.055:2008
147 ATS5200.055:2008 is described as: “Technical specifications for plumbing and drainage products”. Part 055: Plastics fittings – Connectors with flexible intermediate joints for drainage and sewerage applications. The ATS recites that the object of the ATS is to enable product certification in accordance with the requirements of the PCA. The documents also records that the CAB, working with and on behalf of an applicant, is to actively participate to convert the ATS approved by the NPRF into an Australian Standard within two years. Further, the document records that the test protocols and information in the ATS have been arranged by WS-031 committee members to meet the authorisation requirements of the PCA. The scope of the ATS is defined in this way:
This [ATS] sets out requirements for plastics bodied fittings of nominal sizes up to DN225 with intermediate flexible joints for sewer or drain applications. These fittings are for use above ground or below ground and intended to be used where the pipeline is operating under gravity flow and the operating pressure is low. The design of the fitting is such that it compensates for misalignment or movement that may be encountered in pipeline installations.
[emphasis added
148 A number of other Australian Standards are referenced in the document. An “expander joint” is a joint design that allows movement in a lateral plain and includes a positive stop. A “swivel joint” is a joint design that allows movement in a rotating plain and includes a positive stop. The “plastics materials” contemplated by the ATS are fittings made from PVC-U, ABS or ASA (and other nominated materials).
149 As to solvent cement, cl 5.3 provides that fittings with tapered/interference fit joints manufactured to the standard, which are suitable for solvent cement jointing, shall be used with solvent cements and priming fluids complying with AS/NZS3879 (Type N).
150 Cl 8.1.1.2 is in these terms:
ABS/PVC or ASA/PVC Joints
Where the fitting body is either ABS or ASA and intended to be solvent-welded to PVC pipes complying with AS/NZS1260, the joint strength and sheer strength shall not be inferior to that of a PVC/PVC joint.
151 The ATS sets out requirements in relation to elastomeric seals (rubber ring) joints and clear bore requirements.
152 Clause 9 sets out the performance requirements and test methods required by the ATS. They are these:
9. PERFORMANCE REQUIREMENTS AND TEST METHODS
9.1 Solvent-welded joints (ABS/PVC or ASA/PVC)
9.1.1 Joint strength
When tested in accordance with AS/NZS3879 the solvent-welded joint shall withstand a pressure of 0.2 MPa for 5+2, -0 min.
9.1.2 Shear strength
When tested in accordance with Appendix B at a curing time of 10 days, the mean shear stress shall be not less than 3MPa.
9.2 Elastomeric joints – Contact with and pressure
When determined in accordance with AS/NZS 1462.13, the contact pressure shall exceed 0.4 MPa over a continuous width of 4mm.
9.3 Fitting – Hydrostatic pressure test
When tested in accordance with the hydrostatic pressure test of AS/NZS1462.10, at an internal pressure of 85 + 5, -0kPa for 60 + 5, -0min., the assembled fitting shall not leak. The fitting shall be tested unrestrained over the full range of movement.
9.4 Fitting - Liquid infiltration test
When an assembled fitting is subjected to an internal vacuum or external hydrostatic pressure resulting in a pressure differential of 80 + 5, -0kPa for 60 + 5, -0min, in accordance with AS/NZS1462.8, it shall not leak.
153 Clause 9.5 sets out the requirements for the high temperature stress relief test for injection moulded fittings made from PVC/ABS/ASA. It is not necessary to set out the content of that test.
154 Clauses 9.3 and 9.4 contemplate that under the parameters of each test the “assembled fitting” shall not leak. The fittings are not tested disassembled.
155 Clause 9.3 has given rise to a particular matter of contention on Mr Martin’s part as he contends that the requirement for testing the fitting “unrestrained over the full range of movement” requires the fitting to be subjected to the relevant internal pressure for the required period of time and under those conditions the fitting is to be manipulated through the full range of movement.
156 Mr Greig fundamentally disagrees with that notion.
157 Mr Greig says that the fitting is not a product such as a valve or component which is subjected to constant high rates of movement and therefore it is not appropriate to test the fitting by manipulating the fitting under pressure through its full range of articulation over the period of the test to determine whether the fitting might leak under such manipulation at the test pressure. The method required by cl 9.3 according to Mr Greig involves subjecting the fitting to the stipulated internal pressure for the required period of time and then depressurising the fitting and manipulating it to the extremity of its range of movement and then re-pressurising the fitting to the stipulated pressure for the required period of time to test whether the fitting leaks in that position.
158 The fitting would then be depressurised again and manipulated to other positions in the range of movement and re-pressurised to the stipulated pressure for the required period of time to see whether the fitting leaks when the fitting is tested at that point of its range of movement, and so on.
The construction of clause 9.3 of ATS5200.055:2008
159 I accept Mr Greig’s evidence that his view of the way in which a certifying body would go about testing a fitting for the purposes of cl 9.3 is the approach accepted by a person experienced in the provision of certification services. Apart from that contextual understanding, cl 9.3 as a matter of construction does not expressly require the manipulation of the fitting through its full range of movement when being tested unrestrained at the relevant pressure for the relevant period of time. If the test required manipulation of the component during the course of the test at pressure over the period of the test the ATS would have expressly adopted that language as the measure of the relevant performance requirement.
160 Such a matter would not have been left to inference or assumption.
161 Moreover, the ATS, as already noted, defines the fitting in each case (expander joint and swivel joint) as a joint designed to allow movement in a lateral plain or allow movement in a rotating plain (respectively) which suggests a permissive or facilitative definition of the fitting rather than a definition which contemplates a high degree of constant or repetitive movement throughout the constant functioning of the component. Consistent with the notion that the fitting is designed to allow movement, is a test which focuses upon its performance characteristics at one extremity in its range of movement (a static point) and its performance characteristics at other static points of extremity of its possible range of movement.
162 Clause 9.3 does not contemplate pressurising the fitting and then manipulating it (presumably by hand) throughout the period of the test, through its full range of movement under pressure as if that activity reflected an accurate analogue of the functioning of the fitting.
163 This approach adopted by Mr Martin to the requirements of cl 9.3 became an important matter because in instructing the University of South Australia in the conduct of the tests undertaken by the AIT Centre in making the comparison between the fittings of Storm Plastics and the fittings of Plastec (supplied by Storm Plastics and Mr Martin to the AIT Centre for the purposes of that comparative testing), Mr Martin considered that the appropriate test to be undertaken to determine whether Plastec’s fittings might leak was a test described in the AIT Centre Report as a “modified test”. The modification to the test protocols of ATS5200.055 Mr Martin required to be undertaken involved pressurising the Plastec fittings to the required pressure for the required period of time and manipulating them through the full range of movement to determine whether the fitting leaked in the course of manipulation.
164 This form of test was not required by ATS5200.055. ACSPL (Mr Greig) subjected the Plastec fittings to all of the relevant tests required by ATS5200.055 and the fittings passed those tests which resulted in the fittings being certified by the CAB to ATS5200.055:2008 giving rise to the WaterMark certification and licence.
The representations
165 At this point, is convenient to set out the statements made by Mr Martin in the Martin material that Plastec relies upon as giving rise to conduct by Mr Martin in contravention of s 52 of the Trade Practices Act 1974 as the applicable law at the time of the conduct. The representations pleaded at para 16 of the SFASC are these.
In the Purdon Report [as modified and adopted by Mr Martin as earlier explained]. [Mr Martin by sending out the Martin material on and after 22 September 2009], made certain representations which had the following effect (the “22 September Representations”):
(a) that Plastec was conducting business in a manner which was contrary to the National Plumbing Code and in non-compliance with Australian Standard AS/NZS 3500 Plumbing and Drainage;
(b) that Plastec advertises in an advertising brochure in respect of the Plastec Fittings (“Plastec Fittings Brochure”) a method of fixing its products to other products manufactured from Polyvinyl-Chloride (uPVC) using Type N solvent cement in contravention of relevant Australian Standards;
(c) that it is illegal to join a plumbing product made from ABS or ASA to a plumbing product made from uPVC using Type N solvent cement;
(d) that Plastec advertises in the Plastec Fittings Brochure that the Plastec Fittings have been certified with a Watermark as complying with ATS 5200.055 when the Plastec Fittings do not have such Watermark certification;
(e) that Plastec has illegally colluded with SAI Global and/or Standards Australia with respect to obtaining approvals for the Plastec Fittings to which it is not entitled;
(f) that the Plastec Fittings Brochure was untrue and misleading to the extent that it represented that the Plastec Fittings had a Watermark approval in respect of ATS 5200.055;
(g) that to connect Plastec Fittings to underground sanitary drainage systems would breach or otherwise be contrary to the Australian Standards;
(h) that it is a requirement of the Australian Standards to connect a Plastec Fitting to a pipe manufactured from PVC or other fitting using a mechanical coupling;
(i) that the use of the Plastec Fittings have created problems in sanitary plumbing systems for in excess of two years;
(j) that the problems in relation to the sanitary plumbing systems caused by the Plastec Fittings (being the subject of the representation pleaded in (i) above) are out of hand, and the entities authorised to regulate the plumbing industry were aware of the alleged problems but not prepared to take appropriate action;
(k) that the certifications obtained by Plastec in respect of all of its products including the Plastec Fittings are not valid because they were obtained by Plastec from a certifier or from a testing facility who (or which) was not independent and therefore:
(i) the certifications cannot be relied on; and
(ii) Plastec is illegally representing its products as being certified as meeting applicable Australian Standards when they do not;
(l) that the Australian Standards published by Standards Australia are not credible as a consequence of the representations pleaded in (a) - (k) herein; and
(m) that the Plastec Fittings when first sold in the Australian market were Watermark certified as complying with Australian Standard AS2887-1993 which Standards Australia subsequently acknowledged was not the correct standard by which the Plastec Fittings should have been certified;
(n) that the Plastec Fittings were defective;
(o) that the Plastec Fittings, when installed in drainage systems leak from the outset;
(p) that 5 randomly selected Plastec Fittings and 5 randomly selected products manufactured by a competitor of Plastec, being Storm Plastics (SA) Pty Ltd (the Storm Fittings), were each subjected to an independent test which proved that the Plastec Fittings did not meet the requirements of ATS 5200.055 whereas the Storm Fittings did meet the requirements of ATS 5200.055;
(q) that Plastec has supplied thousands of Plastec Fittings which were defective in Australia and New Zealand.
166 The representation at para 16(a) is contained within the statements about the National Plumbing Code and AS/NZS3500 in the first paragraph at the foot of page 1 of the Purdon Report being the first eleven pages of the Martin material.
167 The representation at para 16(b) is contained at page 3 of 58 of the Martin material in these terms:
Currently there is conflicting information within the plumbing industry on the joining of dissimilar pipe and fitting materials, i.e., ABS to PVC-U and vice versa. In the Plastec brochure it is directed that Type N solvent cement be used. Unfortunately for Plastec that directive contravenes the relevant Standards as they do not permit the use of a solvent cement bonded joint between PVC-U and ABS Plastics pipe and or fittings.
168 The representation at para 16(c) is contained within the language in the second paragraph on page 4 of 58 of the Martin material (comprising the entire paragraph) and concluding with these matters:
Although it is a general understanding that the jointing medium, solvent cement, for joining ABS fittings to PVC-U pipe must comply with AS/NZS3879 [w]ithout the legal support of an appropriate Standard, for an installer to use Type N solvent cement to join ABS to PVC-U pipe and/or fittings as an “Acceptable Solution” outcome, at law it is doubtful that his/her decision would hold up in court in the event of a drainage system failure.
169 The representation at para 16(d) is set out extensively at pages 5, 6, 7 and 8 of 58 of the Martin material.
170 The representation at para 16(e) is set out at page 8 of 58 of the Martin material in these terms:
It is alleged that there may be some collusion/confidential agreement pending between SAI Global and Plastec to embrace such matters? [the reference to such matters being the mistaken discussion on Mr Martin’s part that Plastec had not obtained certification of the Plastec fittings to ATS5200.055].
[the emphasis in bold is Mr Martin’s emphasis]
171 The representation at para 16(f) is set out at page 8 of 58 of the Martin material in these terms:
2. The Plastec Australia Pty Ltd brochure states that “Plastec swivel and expansion joints are fully WaterMark approved (ATS5200.055)”. An untruth and misleading statement according to the investigations [being Mr Martin’s investigations] conducted.
172 The representation at para 16(g) is set out at page 9 of 58 of the Martin material in these terms:
3. The interpretation of the definition of “sanitary plumbing” precludes the use of Plastec swivel and expansion joints underground, i.e., in sanitary drainage systems.
173 The representation at para 16(h) is set out at page 9 of 58 of the Martin material in these terms:
4. AS/NZS2032 and AS/NZS3690 clearly state that mechanical coupling shall be used for jointing methods of other materials, i.e., ABS to PVC-U pipe and/or fittings or vice versa.
174 The representation at para 16(i) is set out at page 9 of 58 of the Martin material in these terms:
To conclude, it is requested that the matters raised on the intermixing of ABS fittings into PVC-U drainage systems require urgent resolution as the problems have persisted since ABS fittings were first introduced for installation in sanitary plumbing systems in excess of two years ago.
[the emphasis in bold is Mr Martin’s emphasis]
175 The representation at para 16(j) is set out at page 9 of 58 of the Martin material in these terms:
It would appear that the issues have got out of hand so to speak but only due to those in authority not acting professionally in the first instance. By adopting a head in the sand attitude and hoping that the problem would go away with time, has exacerbated the problem whereby resolution without exposure to litigation seems unlikely. Is it the objective of those in authority to stall a resolution to the problem beyond 2010 when it is the intent of the authorities to withdraw from the area of governance over the regulatory role to the plumbing industry?
[the emphasis in bold is Mr Martin’s emphasis]
176 The representation at para 16(k) is set out at page 9 of 58 of the Martin material in these terms:
It is also considered that there is an urgent need for SAI Global to address the product certifications status of all products produced by Plastec Australia Pty Ltd with a totally independent testing facility with no connection or association with Plastec Australia Pty Ltd. Then and only then will the industry and public as a whole be assured that their (Plastec’s) plumbing products are bona-fide certified as complying with the relevant Australian / New Zealand Standards or Technical Specifications as applicable.
[the emphasis in bold is Mr Martin’s emphasis]
177 The representation at para 16(l) is set out at page 9 of 58 of the Martin material in these terms:
Standards Australia need to address the credibility of Standards published in their name.
[the emphasis in bold is Mr Martin’s emphasis]
178 The representation at para 16(m) is set out at page 18 of 58 of the Martin material at para 1.9. In that paragraph Mr Martin contends that because AS 2887 was not a referenced document in 5200.055, committee WS-031 must necessarily have acknowledged that AS 2887 was a Standard inappropriate to the Plastec fittings “from the outset, i.e., when the application for the assessment of ABS/ASA swivel and expansion joints for drainage applications was first made to SAI Global, the assessing body”.
179 The representation at para 16(n) is set out at page 17 of 58 of the Martin material at paras 1.5 and 1.10. At para 1.5, under the topic of “How credible are Standards? ?”, Mr Martin in a conclusionary way says: “In consequence it is considered appropriate, maybe belatedly, to submit this independent review in the hope that ‘someone’ in authority will get the wheels of bureaucracy into motion and review, in detail, the many issues presented” and at 1.10 Mr Martin says: “[s]ubsequently independent testing was undertaken with the University of South Australia (Uni S A) to verify and gather support documentation on the issue”. The emphasis in bold in these quotes is Mr Martin’s emphasis [the emphasis in italics is added].
180 The representation at para 16(o) is set out at pp 18 and 19 of the Martin material at para 1.5 in these terms:
In late 2007 complaints were circulating around the plumbing industry in Queensland, from drainage contractors, of plastics swivel joint assemblies, (drainage pipe fittings), leaking when subjected to water testing at the time of installation. … Such complaints continued into 2008 and prevailed to this day … A pipe fitting that leaked at the outset could hardly be deemed “fit for purpose”.
[Mr Martin’s emphasis in bold]
181 Mr Martin accepts that these remarks are references to the Plastec fittings and he says that he had heard many comments to this effect over the period mentioned and believed it to be so.
182 The representation at para 16(p) is set out at pp 19, 21 and 29 of the Martin material at paras 1.11, 1.21 and A2.28. Those paragraphs are in these terms:
1.11 The testing undertaken, although minimal, established that five (5) randomly selected Plastec ABS/ASA swivel joint assemblies did not comply with the hydrostatic pressure test (a watertightness test), defined in ATS 5200.055. The hydrostatic pressure test is a basic test that all drainage fittings, without exception, should comply. Five (5) randomly selected PVC-U swivel joint assemblies from Storm Plastics did pass.
What does this mean or imply? It is alleged that given the time span involved, tot his point in time, there could be many thousands of defective Plastec ABS/ASA swivel joints assemblies installed in drainage systems across Australia and New Zealand.
Notwithstanding it is submitted that the most basic of tests in ATS 5200.55 the hydrostatic pressure test was deficient in its directions. Prior to assessing the swivel joint assemblies that were submitted for testing the test procedure of interest (Clause 9.3 of ATS 5200.55), was informally amended to provide a more realistic performance based test procedure. The intent of the test was unchanged. It is also submitted that non-compliance with the additional testing requirements may also jeopardise the integrity of future drainage systems into which swivel joint assemblies are installed.
1.21 The hydrostatic pressure testing of the swivel joint assemblies manufactured by Plastec Australia (QLD) Pty Ltd. And Storm Plastics (SA) Pty Ltd. in accordance with ATS 5200.055 and the informal addendum, proved the performance status of the two types of swivel joint assemblies. Testing was undertaken by Uni SA at their Mawson Lakes testing facility. - The Test Report is attached as an appendage to APPENDIX B. APPENDIX C is of images pertaining to a test procedure set out in APPENDIX B.
A2.28 Testing undertaken proved beyond doubt that a leakage problem existed with ABS/ASA swivel joint assemblies and on investigation a flaw was also detected in the most fundamental of tests set out in ATS 5200.055, the hydrostatic pressure test. Testing at low pressures, and testing to simulate actual working conditions, had been omitted. Minor variations to the testing procedure of ATS 5200.055 were developed and an independent testing authority, the University of South Australia (Uni SA), engaged and instructed to ascertain the merits of the additional (informal) testing procedure. The original intent of the testing set out in ATS 5200.055 was unchanged.
[the emphasis in bold is Mr Martin’s emphasis]
183 The representation at para (q) is set out at p 19, para 1.11 of the Martin material as quoted above.
Preliminary observations and findings
184 Before addressing some other issues these observations and findings are made.
185 First, Plastec contends that each of the statements made by Mr Martin are incorrect and the distribution of the Martin material was misleading or deceptive of addressees of the material or likely to mislead or deceive those addressees. To make those contentions good on the facts, Plastec has called a substantial body of evidence from witnesses including Mr Hawthorne, Mr Perham, Dr Ray Brown (a Polymer Chemist), Mr Greig, Mr Casey and Mr Wegmann and others. Mr Martin has not put on or called any evidence to contradict Plastec’s evidence and the evidence is unchallenged except as to Mr Martin’s assertion of his own opinions by affidavit (and submissions) on topics such as the proper construction of particular Standards, relevant or preferred test regimes, bonding or joining protocols, the importance of the matters said to be demonstrated by the University of South Australia tests, and other matters.
186 Notwithstanding Mr Martin’s own affidavits, the evidence called by Plastec is unchallenged. I accept all of the evidence of the deponents called or relied upon by Plastec. No basis is demonstrated for rejecting any of that evidence. I accept it. Those matters of fact described in these reasons, I find as the facts.
187 Second, I have examined in these reasons in some detail the sequence of events leading to the certification of the Plastec fittings to AS 2887; the tests obtained from QTL; the engagement between SAI Global and Plastec; Mr Perham’s role in QTL and Plastec; the QTL testing process; Mr Greig’s knowledge of the certification of the Plastec fittings to AS 2887 in the period he was associated with SAI Global; the role of each CAB and its engagement with Standards Australia; and the development of ATS 5200.055 and ultimately, ACSPL’s certification of the Plastec fittings to that ATS.
188 It is clear that when Mr Martin issued the Martin material, he had no basis whatsoever for suggesting to anyone that Plastec had colluded with SAI Global or Standards Australia to obtain a certification to which it was not entitled. Although Mr Martin abandoned this contention in the pleadings, it remains relevant for the purposes of an assessment of the conduct at the time.
189 Third, Mr Martin knew, when he distributed the Martin material, that the report of the AIT Centre was not independent as he had been centrally involved in determining the tests to be undertaken and had modified the tests required by ATS 5200.055. In addressing the relationship between Mr Martin and Storm Plastics, aspects of this matter will be further examined. However, Mr Martin took the view that the tests to be undertaken by the University of South Australia should be modified to simulate movement of the joint by manipulation through the full range of movement under pressure, although that test was not required by cl 9.3 under the ATS for an “expander joint” or a “swivel joint” fitting. Moreover, Mr Martin considered that the real point of testing the Plastec fittings was to see whether the elastomeric seals functioned to prevent leaks and therefore the outer housing of the swivel joint ought to be penetrated by two small holes on each side to see if fluid leaked through the seals into the outer “de facto” seal of the moulded housing. No such test was required by ATS 5200.055.
190 The Plastec fittings met and complied with the range of tests required by ATS 5200.055.
191 Further, Mr Martin wrote the AIT Centre Report and left out of it the results of tests the Plastec fittings satisfied and included the results of tests not required by the ATS. Mr Martin has no document which sets out the full field of tests and the results of all those tests as undertaken at the University of South Australia. Mr Martin chose, wrongly, to describe the report as an independent verification of the failure of the Plastec fittings to achieve the characteristics required by the PCA (by conformity to ATS 5200.055), when the report was not independent and was not directed to an arms-length set of tests measuring the performance of the Plastec fittings to the ATS test protocols. Mr Martin by his material suggested that a test report undertaken independently of him, uninfluenced by him in the protocols and tests to be adopted, had “come to hand” giving compelling objective verification of the asserted established fact that the Plastec fittings leaked. Mr Martin did not give proper emphasis (in bold or otherwise) to the extant contradictory position that the Plastec fittings had been tested and approved to the satisfaction of the CAB through tests at a NATA facility, all in accordance with the WMCS system.
192 Fourth, Mr Martin had no basis for representing in the first 11 pages of the Martin material that Plastec had not obtained certification of the Plastec fittings to ATS 5200.055. Mr Purdon’s “investigation” adopted by Mr Martin had miscarried by failing to search the correct database which led to the development of a set of criticisms (that is to say assertions of fact) about lawfulness of sale and use of the Plastec fittings that was simply not true.
193 Fifth, Mr Martin has dedicated considerable discourse to the inappropriateness of joining an ABS or ASA fitting to PVC-U pipes or fittings having regard to his observations on the differential thermal expansion rates of the plastics materials and the molecular interaction of the properties of each plastics material and the glue. In the end, Mr Martin does not now seem to say that a robust joint satisfying the shear strength tests of ATS 5200.055 (meeting the requirements of AS/NZS3879) is not created by joining an ABS or ASA fitting to PVC-U in the way suggested in the ATS, but the real point of Mr Martin’s concern is that such a joint may not, and is not shown by any relevant tests to, endure for the life of an installation – say 80 years. There was no basis for Mr Martin suggesting, on this endurance footing point, that the Plastec fittings did not comply with ATS 5200.055 or the PCA. Dr Brown gave evidence that he has no reservations or concerns as a Polymer Chemist in joining an ABS or ASA fitting to PVC-U pipe in the way suggested in the ATS. Clauses 5.3 and 8.1.1.2 of the ATS expressly contemplate such jointing with the use of T type N solvent cement.
194 The ATS, as Mr Greig observes, does not require testing of the “endurance” of the fittings over the projected life of an installation. The ATS incorporates tests for shear strength and the performance characteristics of the fittings, as manufactured. The Plastec fittings passed all of the tests required by the ATS and thus complied with the PCA.
195 Sixth, Mr Martin had no basis for suggesting to addressees that Plastec did not have the certifications it had or that it had failed to comply with the PCA.
196 Seventh, although Mr Martin says that he had heard of failures in joints in drainage installations by reason of the joinder of ABS or ASA fittings to PVC-U pipes, it was not reasonable for Mr Martin to propound in the Martin material that “there could be many thousands of defective Plastec ABS/ASA swivel joint assemblies in drainage systems across Australia and New Zealand” without having before him a representative number of precise examples, at identified sites, of failures in drainage installations where the failure was shown to be attributable to the joining of an ABS/ASA fitting to PVC-U pipes or fittings. I find there were no such representative examples before Mr Martin to objectively support the making of the representation. Since Mr Martin intended addressees to rely upon the Martin material to secure, as he accepted in evidence, the withdrawal of ATS 5200.055 and in consequence, the removal of the Plastec products from future use in drainage installations (and therefore the market), Mr Martin ought reasonably to have had clear representative examples of failures before him before making the assertions in the distributed material.
197 Mr Martin was not able to adduce at trial any example of such a failure at any time in any installation.
198 Eighth, as to QTL, there was no basis for concluding that QTL was controlled by Plastec or that the tests undertaken by QTL and the reports and results emanating from QTL, were anything other than independently conducted and the reports independently written and approved in accordance with the NATA processes.
199 Ninth, more fundamentally, Mr Martin did not engage in the prudent or rational step of first writing, as a concerned retired plumber, to Plastec to put his many concerns to those responsible in Plastec for the management of the company. Many of the matters now put in evidence by Plastec might well have been put to Mr Martin to address the mistakes and other concerns asserted in the Martin material as distributed by Mr Martin. Moreover, Mr Martin failed to have regard to the information set out in the SAI Global letter of 19 September 2007; the information in the SA Water email of 8 July 2008; the invitation from SA Water to inspect the test reports supporting SA Water’s position adopted in the email of 8 July 2008; and other responsive matters.
200 One inference open is that Mr Martin may not have been interested in hearing a contrary view as Mr Martin seemed committed to his own version of the facts (and questions of construction of particular Australian Standards) and seemed committed to agitating a position that the Plastec fittings leak, and do not meet the performance requirements, notwithstanding the satisfaction of the CAB that the fittings complied with and passed the required tests. A further inference is open that Mr Martin was agitating a position so as to advance the interests of Plastec’s rival, Storm Plastics.
The exchanges
201 It is now necessary to examine the sequence of exchanges between Mr Martin, Storm Plastics, SAI Global, Standards Australia, SA Water and many others.
202 I find the following exchanges occurred and in doing so I will assume that a letter bearing a date, was sent on or within a day or so, of that date. I also make findings about some aspects of the matter in the course of examining these exchanges.
203 On 28 June 2005, Storm Plastics (“SP”) sent a letter to Mr Kilpatrick, the Senior Plumbing Inspector at the Ipswich City Council, explaining that SP is the manufacturer of an extensive range of PVC-U swivel and expansion couplings for drainage and pipework systems in Australia (fittings for Drain, Waste and Vent – DWV). The letter explains that SP is seeking to overcome non-compliance of the elastomeric seal joint with the performance requirement of AS 1260:2002 (cl 3.4.4). The letter explains that the profile of the joint has been designed to meet in service environmental performance requirements; the requirements of AS 1260 are excessive; the “most important” and “most relevant” tests under AS 1260 are the “hydrostatic pressure” test and the “liquid infiltration” test, and the SP fittings have passed these tests. The letter observes that since 1993 SP has sold 43,000 swivel/expansion fittings and more than 250,000 standard expansion joints “and [with] no reports of failed fittings received, the performance record speaks for itself”. The letter explains the history (including the role of John Goldfinch of Koukourou Engineers) and the functionality of the swivel and expansion couplings, and extols their virtue.
204 The letter is signed by Mr Marco Elbe, Manager SP, South Australia.
205 The letter was written by Mr Martin, as he accepts.
206 On 1 September 2006, Mr Martin signed and sent a letter to Mr Goldfinch addressing matters related to AS/NZS3500, AS 2870 and AS/NZS2032. The letter refers to a meeting between Mr Martin, Marco (Mr Elbe) Marty (Martin Bennett, the Principal and CEO of Storm Plastics) and Jeff Clark of South Australian Water Corporation (SA Water) concerning the submission for changes to the Standards and other issues of concern.
207 On 13 July 2007, Mr Martin sent SP (Mr Elbe) a fee letter (invoice) dated 9 July 2007 for “consultation services” and services concerning “documentation” and “associated works” of $3,250.00 in which he also said “I look forward to assisting the advancement off [sic] your business enterprise”.
208 It was paid by SP on 13 July 2007.
209 On 23 July 2007, Des Grevell (the Queensland Manager for SP) sent an email to SP (South Australia) concerning material sent to Mr Grevell by the Master Plumbers’ Association of Queensland (“MPAQ”) about an “Inquiry into the Regulation of Plumbing Product Quality” in Australia (to be conducted by the House of Representatives Standing Committee on Environment and Heritage). Mr Elbe sent the email to Mr Martin saying that he would call in the morning to discuss it.
210 On 17 August 2007, Mr Martin sent Mr Elbe by email an 11 page submission to the Inquiry to be submitted by Mr Martin. This is the first occasion on which the endorsement “without prejudice” appears at the foot of a document written by Mr Martin just above his name. Mr Martin generally adopts this practice and seems to regard adopting the term “without prejudice” as a general protection from criticism that might be made of him concerning the content of the particular document.
211 On 21 August 2007, Mr Martin sent a letter to the Chief Executive of Standards Australia under the reference: “Plastec Australia Swivel Ball Joint & Compactor Joint Licence No: WMKT00239”. In that letter, Mr Martin begins to propound some of his recurring contentions. Mr Martin begins by referring to a Plastec brochure and notes a reference to certification of the referenced fittings to AS 2887. Mr Martin says that since the fittings are to be used for stormwater or sanitary drainage applications and underground drainage applications, it is “blatantly clear” that AS 2887 is the wrong Standard for evaluation of the fittings and “AS 1260 PVC-U pipes and fittings for drain, waste and vent application” is the appropriate Standard. Secondly, Mr Martin says that since the fittings are made of ABS, the fittings will be compatible with PVC-U materials (that is, capable of being joined) only so long as a high bond solvent cement (Type P) is used, not Type N solvent cement. Thirdly, Mr Martin says that Mr Richards at SAI Global must have been “ill-informed” by Plastec when the CAB’s assessment was done. Fourthly, Mr Martin says that AS 2887 is intended to embrace “end of line appurtenances”, not other jointing, and if the fittings are to be joined to PVC-U pipe, “[the] fittings should be re-assessed for compliance with the dimension and performance criteria of [AS/NZS1260]” [emphasis added].
212 By this letter, Mr Martin is agitating for the compliance assessment of the Plastec fittings to AS 2887 to be reassessed.
213 On 31 August 2007, SP’s lawyers, D’Angelo Kavanagh, sent a fee note to SP (“Mr Bennett/Mrs Bennett”) for, in part, attendances by those lawyers upon Mr Martin on 21 August 2007 in “discussing issues with Plastex [sic] products comliance [sic] with Australian Standard (0.3 hours)” and “… attendance by Mr Kavanagh upon Marty (Mr Bennett) Jenny (Mrs Bennett) Marco (Mr Elbe) and Ralph (Mr Martin) discussing Plastec issues (1.2 hours).
214 On 10 September 2007, Mr Martin sent a letter to Mr Greg Moore and Mr Lee Fitzpatrick of SA Water agitating for urgent attention on the issue of the suitability of AS 2887 in the manner previously indicated, and related matters.
215 On 10 September 2007, Mr Martin sent a letter to SAI Global (to the attention of Mr Tony Scotton, Executive Officer) marked in capitals and bold: “For Urgent Attention” under a reference describing Plastec, its swivel and expander joint fittings (100), the WaterMark licence WMKT00239 and ABS/ASA material. In the letter, Mr Martin says that SAI Global’s granting of WaterMark certification reflects on the integrity of the Standard and the integrity of SAI Global. Mr Martin says that “[as] a consequence of general inquiries it has been said that the molecular structure of ABS materials and the exposure of such materials to environment stress and liquid wastes” makes ABS materials not well suited for joiner fittings in sanitary plumbing and drainage systems. In the letter, Mr Martin refers to a Plastec brochure making reference to certification of the fittings to AS 1260 rather than AS 2887 and, as to AS 2887, Mr Martin asserts the position put to Standards Australia that AS 2887 is concerned with “waste fittings” and “end of line appurtenances” and has no application to swivel and expansion joint fittings for underground drainage and sanitary plumbing pipe systems. Mr Martin accepts in the letter that “albeit [the fittings] could also have a limited use in above ground plumbing systems”, it is “blatantly clear” that AS 2887 is not the appropriate Standard for evaluation of the fittings for drainage purposes and since the fittings are to be included in underground PVC-U drainage pipe systems, the relevant Standard is AS/NZS1260. Mr Martin also says in the letter that AS2887:1993 is out of date and does not contain the necessary performance tests to determine fitness for purpose in underground drainage applications.
216 Mr Martin concludes the letter by asserting doubts about the integrity of the materials (ABS) and the “ability of the said fittings to perform in service” and contends that “sales be suspended” pending satisfactory proof that ABS fittings can be included in non-pressure PVC-U sanitary plumbing and drainage pipe systems. Mr Martin says that if so proven, the fittings ought to be assessed to AS 1260 (notwithstanding the extant assessment made to AS 2887) and instructions ought to be given to installers as to the solvent cement to be used for joining purposes.
217 Mr Martin presses SAI Global in the letter to urgently reassess the Plastec fittings as users will think that SAI Global “unconditionally condones” use of the fittings “when some doubt exists of their in service suitability”.
218 On 10 September 2007, Mr Martin sent a letter to Mr S Georganas MP (South Australia) on the topic of joiner fittings, asserting that doubts had been raised about the integrity of ABS fittings for use in sanitary drainage plumbing systems due to “the nature of [ABS] chemical structure and composition”. Mr Martin contended that the fittings [the Plastec fittings] had been accepted by SAI Global “by default” due to “a shortfall in the text of [AS2887]”. Mr Martin said he had enclosed “documentation [which] is self explanatory” in the letter to Mr Georganas.
219 On 12 September 2007 at 11.39am, Mr Martin sent an email to Mr Elbe at SP attaching “PLASTECAttach.doc” under the reference “Inquiry into the Regulation of Plumbing Product quality in Australia”. The attached documents were a letter by Mr Martin to the Secretary of the Inquiry agitating the views put to SAI Global in Mr Martin’s letter of 10 September 2007, and a copy of Mr Martin’s letter to SAI Global of 10 September 2007 together with all of the attachments to that letter.
220 On 12 September 2007 at 5.06pm, Mr Elbe sent Mr Martin an email under the subject reference “Plastec standards” sending to him an email from Des Grevell SP (Qld) of 11 September 2007 concerning a question asked by a technical officer of the MPAQ about Plastec’s fittings and AS 2887.
221 On 12 September 2007 at 9.16pm, Mr Martin sent Mr Elbe another email attaching a copy of Mr Martin’s letter to Mr Colin Blair dated 12 September 2007, the Executive Officer of Standards Australia. In that letter, Mr Martin refers to his earlier letter of 21 August 2007 to Standards Australia and his letter to SAI Global and encloses SAI Global’s response. Mr Martin also encloses “the whole file” for Mr Blair’s attention and agitates (in bold) for an urgent amendment to AS 2887 “to ‘clearly define’, as the Standard implies but does not state, that it applies to end of line appurtenances” and does “not apply to the drainage system downstream of the precinct of the terminal fixture(s)” [emphasis in italics added].
222 The enclosed response of 12 September 2007 from SAI Global told Mr Martin that Mr Scotton was overseas and M Battaglia would investigate the matters raised and respond. SAI Global observed that questions concerning the content or a revision of a Standard were a matter for Standards Australia Limited. Mr Martin then sent a copy of his letter of 12 September 2007 addressed to Mr Blair (together with copies of his letters of 10 September 2007) to Marco Elbe that night (together with further copies of the material he had attached to the email to Marco Elbe sent at 11.39am).
223 On 19 September 2007, Standards Australia (M Maffucci – Secretary to Committee P-007 – Standards Australia) wrote to Mr Martin responding to his letter of 21 August 2007 and said that the matters raised by Mr Martin had been referred to Mr Guindi at the CAB, SAI Global, to “investigate this matter” and respond.
224 On 19 September 2007, SAI Global (Mario Battaglia – General Manager, Product Certification) responded in writing to Mr Martin. Mr Martin received that letter on 24 September 2007. As to the reference in the Plastec brochure to certification of the Plastec fittings to AS 1260, SAI Global confirmed that the certification was to AS 2887. As to the general propositions agitated by Mr Martin concerning AS 2887, SAI Global said this:
2. Compliance of the stated products (namely the Expansion Pipe Joiner 100 – Waste Connector & Adjustable Swivel Pipe Joiner 100 – Pipe Joiner products) to AS2887.
We have reviewed the certification process and the basis of the certification decision, including all associated test reports, and are satisfied that these stated Plastec Australia products are compliance with AS2887. Please note that AS2887 refer to other standards and, in certifying these products, they were assessed against the performance requirements within AS2887, the referred AS1260 end connection dimensional compliance, the referred limitations in AS3500.2 Cl.2.4, and the stated performance requirements in WSA117.
[emphasis added]
225 On 21 September 2007, Mr Martin sent a letter to SAI Global under the same conjunction of references as set out in his letter of 10 September 2007 (and adding “Compound ASA, NR70”). In this letter, Mr Martin says that some of the Plastec products are made from ASA (although marked ABS) and that since ASA “polymers are amorphous plastics which have mechanical properties similar to those of ABS resins”, and since ASA is “attacked by concentrated acids, aromatic and chlorinated hydrocarbons, esters and ketones”, ASA (NR70) is little different from ABS and therefore all of Mr Martin’s earlier concerns also embrace ASA fittings.
226 On 25 September 2007, Mr Martin then wrote to the CSIRO (Mr Burn). In that letter, Mr Martin notes that WSA 117-2004 concerns the industry Standard for “ABS systems as a single identity” (that is, ABS compounds, pipes and fittings for drainage and sewerage) just as AS 1260 applies to single identity PVC-U systems. Mr Martin asks CSIRO whether ABS is superior to PVC-U in underground drainage systems; asks what is the best solvent cement to use to bond ABS to PVC-U; asks why the clear bore test is absent from WSA 117-2004; and whether ASA (NR70) can successfully be joined to PVC-U and if so, what solvent cement type should be used.
227 It seems that at this point, Mr Martin is not at all certain of the position. He is also asking these further matters notwithstanding the position set out in SAI Global’s letter of 19 September 2007.
228 On 26 September 2007, Mr Martin puts the same questions as put to CSIRO, to Mr E Bova, the Technical Services Manager, of a company called George Fischer Pty Ltd.
229 In these letters no question is expressly raised by Mr Martin directed to the issue of the endurance or longevity of a joint formed by joining an ABS fitting to PVC-U pipe, over the projected life of an installation.
230 On 30 September 2007, the lawyers for SP, D’Angelo Kavanagh, sent a fee invoice to SP to the attention of Mr and Mrs Bennett particularised in the following way:
07 September 07 Personal attendance by Mr Kavanagh upon Marty, Jenny, Ralph & Marco (1.2 hours).
231 Mr Martin could not recall whether this attendance concerned efforts to secure a reassessment of product certification for the Plastec products.
232 On 5 October 2007, Mr Martin responded to SAI Global’s letter of 19 September 2007 with a five page letter. In that letter, Mr Martin said that although the Plastec fittings “indeed may well be suitable in a drainage system”, AS/NZS1260 is the Standard that solely relates to PVC-U pipes and fittings for drain, waste and vent applications and there are “no provisions within the Standard for the integration of other plastics by means of solvent cement joints” [emphasis in italics added]. Mr Martin also said in that letter that the Plastec products should comply, as to performance requirements, with AS 1260 (notwithstanding that AS 1260 is confined to PVC-U materials), but:
… [by] manufacturing the product from a non PVC-U material Plastec Australia are able to avoid the stringencies of AS/NZS1260.
233 In the letter, Mr Martin continued to assert that AS 2887 has no application to “drainage applications”. Mr Martin pressed all of the earlier notions he had put, and called upon SAI Global to provide him (for his viewing) and others, “all of the Test Reports” and all “documentation” relating to the “NATA certification status of the … Testing Laboratory to perform the respective tests”. As to point 2 of SAI Global’s letter of 19 September 2007, Mr Martin took issue with each aspect of the CAB’s position and pressed the position that AS 1260 was the relevant Standard not AS 2887 and that the test regime of AS 2887 was “totally inadequate” on joining.
234 On 7 October 2007, Mr Martin sent another letter to Standards Australia under the reference “WaterMark Certified Plumbing Products: Plastec Australia” (cc to SA Water and others) agitating for a review of AS 2887 on the same basis as earlier put to Standards Australia. In this letter, Mr Martin “allege[s] that the manner in which AS 2887 has been exploited in recent times [that is, by Plastec]” suggests that the Standard should be reviewed as a matter of urgency.
235 On 8 October 2007, Mr Martin sent an email to Marco Elbe, Des Grevell and Paul Trentini (all of SP) under the subject reference “WaterMark Certified Plumbing Products: Plastec Australia/Plastec” attaching two files. Those files contained copies of Mr Martin’s letter to Standards Australia dated 7 October 2007 and his letter to SAI Global dated 5 October 2007 together with attachments. Des Grevell sent the email to Mr Jim Mahon and Tony Purdon (a Plumbing Inspector for the Ipswich City Council) on 9 October 2007. Des Grevell sent the email again to Mr Purdon a little later that day.
236 On 31 October 2007, D’Angelo Kavanagh sent a fee note to SP (Mr and Mrs Bennett) with the reference:
02 Oct 07 Personal attendance by Mr Kavanagh upon Ralph [Martin] discussing progress with gaining scientific evidence and settling a long response letter to Standards Australia.
237 On 12 November 2007, Des Grevell sent an email to a number of addressees concerning the use of solvent cements in joining ABS fittings to PVC-U pipe and observations made at an industry conference in Gladstone that Type N cement is suitable in making such a join. Des Grevell asked three particular questions about that matter of the addressees. The email was sent by Des Grevell to Marco Elbe who sent the email to Mr Martin and said:
… we [SP] are trying to get the appropriate bodies to contact Solvent cement Manufacturers and get something in writing so as to help us clear this issue up.
238 On 12 November 2007, Tony Purdon sent an email to approximately six addressees (including Des Grevell) on the subject of solvent cement joining of ABS fittings to PVC-U pipe. On 15 November 2007, Des Grevell sent that email to Marco Elbe who sent it to Mr Martin. On 16 November 2007, Marco Elbe sent an email to Mr Jeffrey Clark at SA Water and also to two Plumbing Inspectors on the topic of solvent cement joining of ABS to PVC-U pipes. That email forwarded Des Grevell’s email asking the three questions. Marco Elbe forwarded his email to Mr Martin.
239 On 19 November 2007, an SP sales representative (Steven Moore), sent an email to Marco Elbe about joining ABS fittings to PVC-U pipe. That email forwarded to Marco Elbe was an email Mr Moore had sent to Mr Rinard in the United States about ABS/PVC-U joining. On 22 November 2007, Marco Elbe forwarded the email to Mr Martin together with a Plastec advertisement which had appeared in the latest edition of the MPAQ magazine. Mr Elbe told Mr Martin that Mr Rinard “is willing to chat with us in regards to this matter and is awaiting our correspondence”.
240 On 15 January 2008, SP sent an email to Mr Martin requesting his comments on a draft Australian Standard ATS5200.458-2004.
241 On 18 January 2008, Marco Elbe sent an email to Des Grevell, Ralph Martin and Paul Trentini concerning supplying examples of SP’s new joints to each individual saying:
Please find attached new Level 1 WaterMark Certificate and Schedule for our new Fabricated Extended Expansion Joints with various lengths of movement and configurations. Shaun is currently in the process of manufacturing samples for all distributors and I am hoping to send them off to you by the end of next week.
242 On 24 January 2008, Mr Martin wrote to SA Water on the topic of mixing plastics and observed that:
… the problem, at this point in time, is that there are “authorised” ABS/ASA products/fittings [the Plastec fittings] being installed inappropriately into drainage systems. These fittings legitimately bear the WaterMark insignia ...
The weak link in the system is that these … products, manufactured from ABS/ASA, comply with the Australian Standard AS2887, an allied plumbing products Standard intended only for waste fittings [the reference to allied is a reference to AS 1260].
Standards Australia have been challenged in this regard and have confirmed that their granting authorisation to the products concerned is legitimate. Needless to say it is submitted the Standard is grossly out of date and there is an urgent need to remove the reference, and or any inference, to drainage fittings within the document.
[emphasis in bold is that of Mr Martin; emphasis in italics added]
243 In that letter, Mr Martin went on to say this:
[Plastec] is licensed by Standards Australia and their products do comply with an Australian Standard, as previously stated. The company has some 63 ABS/ASA solvent cement jointed fittings currently listed and authorised on their plumbing product Schedule under the WaterMark Certification Scheme in accordance with ATS5200.04 and AS2887.
244 The matter of importance agitated by Mr Martin was that, according to him, “no solvent cement manufacturer in Australia has been prepared to state in writing that their solvent cement, authorised in accordance with AS/NZS3879, would perform satisfactorily if used to join ABS/ASA pipe and or fittings to PVC-U pipe or fittings”. Mr Martin said that ultimate responsibility for the mixing of different plastics materials “rests squarely with the major water authorities” and that the mixing of ABS/ASA pipe or fittings to PVC-U materials underground or above ground, incorporating the use of solvent cement joints, exposes all parties (including regulatory authorities) “to legal liability in the event of a system failure”.
245 The ultimate conclusion put by Mr Martin to SA Water was that:
… [I]n order to minimise the risk of litigation it is … recommended that the major water authorities notify the entire building industry that the integration of ABS/ASA pipe and fittings into PVC-U pipe systems incorporating the use of solvent cement joints has the potential to cause the failure of the pipe system and is not condoned.
[emphasis in italics added]
246 Again, these agitations are directed to securing the support of SA Water in discouraging the entire building industry from using the Plastec fittings.
247 On 24 January 2008, Mr Martin wrote a letter to SA Water’s Principal Materials Scientist (Mr Greg Moore) agitating for the prevention of the integration of ABS/ASA pipe and fittings into PVC-U pipe systems until an investigation had been conducted as suggested by Mr Martin.
248 On 24 January 2008, Mr Martin wrote a letter to SA Water’s Manager of Standards and Legislation (Mr Lee Fitzpatrick) urging the same position.
249 On 24 January 2008 (although mistakenly dated 2007), Mr Martin sent a letter to Standards Australia (Mr Colin Blair) on the topic of mixing plastics. In that letter, Mr Martin referred to the “authorisation status” of ABS and ASA plastics material fittings intended for installation in pipe systems above and below ground utilising solvent cement joints for connection to PVC-U pipe systems. Mr Martin made reference to Plastec and suggested that a reassessment of the status of the authorisation might be necessary. Mr Martin contended that Plastec is required to have their product meet an appropriate Standard and the product must be WaterMark licensed “which includes a warranty [that is a manufacturer’s warranty]”. Mr Martin agitated the position that the “relevance of a warranty takes on a new meaning when aligned to the intermixing of pipe and fittings of dissimilar plastics materials using solvent cement products which have not been authorised for the specific application”.
250 Mr Martin pressed, with Standards Australia, the proposition that joining ABS/ASA fittings into PVC-U sanitary plumbing and drainage systems, stormwater drainage systems and/or water supply systems, by means of solvent cement joints, poses a serious risk to the integrity of the pipe systems giving rise to “long-term potential for serious legal ramifications to develop such as ‘case actions’ for damages incurred”.
251 On 24 January 2008, Mr Martin sent an email at 11.36am to Marco Elbe attaching the three letters written by him on 24 January 2008 as described.
252 On 10 February 2008, Mr Martin wrote a letter to Standards Australia (Mr Colin Blair) concerning a revision of ATS5200.458-2004 and on 12 February 2008, Mr Martin sent a copy of that letter to Marco Elbe, Des Grevell, Mr Lee Fitzpatrick and another addressee.
253 On 21 February 2008, Mr Martin wrote a letter to Mr Otto Marr, Project Manager Committee PL-021, Standards Australia, on the topic of mixing plastics. In that letter, Mr Martin referred to his letter of 24 January 2008 [2007 by error] to Mr Blair. Mr Martin referred to investigations into the United States position (which seems to be the exchanges with Mr Rinard). He pressed the notion that the dissimilar thermal characteristics of ABS/ASA and PVC-U plastics materials would give rise to “much internal stress [to the joint] when exposed to thermal variations”. Mr Martin concluded his letter with these observations:
[joining ABS/ASA plastics materials into PVC-U installations as described] by means of solvent cement joints pose a serious risk to the integrity of the respective pipe systems.
[Mr Martin’s emphasis]
254 Mr Martin contended that a “likely chain of litigation to recover costs for the rectification of works, and associated costs … would start with the installer, the plumber, followed by the [CAB] and the respective authorities involved”. The position Mr Martin sought to achieve is reflected in these concluding observations:
In summary it is recommended that the members of the Committee PL-021 do not support the ongoing integration of ABS/ASA pipe or fittings into PVC-U pipe systems for the reasons stated herein.
[emphasis in italics added]
It is also recommended that the administrators within Standards Australia consolidate the activities of the respective Committees. The Committee PL-021 should encompass such allied Standards as AS2887 and ATS5200.040 where the present problems within the plumbing industry are perceived to have emanated.
255 On 21 February 2008, Mr Martin sent an email at 4.09pm to Marco Elbe, Des Grevell, Greg Moore, Lee Fitzpatrick, Jeffrey Clark and Paul Worthington under the reference “Mixing Plastics” attaching a copy of Mr Martin’s letter of 21 February 2008 to Mr Marr. Mr Fitzpatrick responded at 4.58pm.
256 On 22 February 2008, Mr Martin sent Mr Fitzpatrick’s response to Marco Elbe.
257 On 25 February 2008, Mr Martin wrote a further letter to Mr Colin Blair at Standards Australia referring to his earlier correspondence on the topic of mixing plastics materials and the relevance of a warranty. Mr Martin concluded that letter by agitating in large bold type for action to be taken to either accept the current practice of joining ABS/ASA fittings to PVC-U drainage pipe systems utilising solvent cement joints and “underwrite” that practice in terms of the consequences of it or, alternatively, Standards Australia ought to “[d]isallow the practice and enforce it throughout the industry nationally”.
258 On 25 February 2008, Mr Martin sent an email to Marco Elbe and Des Grevell of SP and also Anne Howe, Greg Moore, Lee Fitzpatrick and Jeffrey Clark of SA Water, and also Paul Worthington and Paul Trentini, attaching a copy of his letter to Mr Blair together with the attachments to that letter.
259 On 5 March 2008, Mr Martin wrote a document put on the letterhead of SP to be signed by Marco Elbe addressed “To whom it may concern”. The document begins by saying that the author is writing to each addressee about concerns in the plumbing industry regarding the mixing of plastics consisting of intermixing ABS/ASA pipe and fittings into PVC-U drainage systems and the use of solvent cements in doing so. The document refers to the remarks at a plumbing conference that ABS products are suitable for cement welding to PVC-U and asserts that if such a practice occurs there is potential for internal stresses to build up over time with a high risk of joint separation, and residual solvent cement left on or in the pipe causing the adjoining ABS/ASA component to “soften with the potential to cause failure of the system(s)”.
260 Mr Martin says this in the document:
We are not suggesting in any way that there is any issue with the quality of Plastec Australia’s products. To our knowledge they have WaterMark certification as approved by SAI Global, albeit to AS 2887 Plastic Waste Fittings which is the Standard for S&P traps, double bowl connectors, floor grates and plug and wastes. Our concern is not with the quality of their product rather it is the joining of ABS/ASA to PVC-U that creates the problem.
261 Mr Martin attaches a wide range of documents to that letter and concludes by saying that “[f]rom the attached documents it is apparent that Type N Solvent Cement is not within an Australian Standard that supports the joining of ABS/ASA to PVC-U.
262 On 5 March 2008, a letter was formulated to Mr Frank Nicholson, the National Product Manager of Tradelink in similar terms.
263 On 11 March 2008, Mr Martin sent an email to Mr Dominic Ardizzi, an ABS pipe supplier, and Mr Enzo Bova concerning a letter addressing ABS and PVC-U plastics use in domestic drainage piping systems.
264 On 18 March 2008, Mr Martin sent a letter to Standards Australia drawing attention to STD Australia Pty Ltd (“STD”) and asking whether Standards Australia is involved or associated with that company “in any way whatsoever”. On 28 March 2008, Mr Martin sent an email to Marco Elbe attaching a copy of the letter of 18 March 2008 to Standards Australia calling for a response about any connection between STD (the subsequent name of the original Plastec entity) and Standards Australia. That email also attached a copy of Mr Martin’s letter dated 28 March 2008 to Mr Georganas MP which attached a document described as “[a] lengthy technical report, outlining the numerous issues in comprehensible layman’s terminology”. Mr Martin said that a condensed version of those issues is “extreme concern relating to the longevity of sanitary drainage systems where dissimilar plastics materials, being pipe and fittings, are joined with solvent cement”. Mr Martin also said that a “controversy prevails” with intermixing ABS/ASA made fittings into PVC-U pipe systems.
265 The “extreme concerns” reflected in that letter and the “prevailing controversy” also mentioned in that letter were, of course, Mr Martin’s extreme concerns and the controversy he had been expressing about the question in conjunction with SP.
266 On 4 April 2008, Mr Martin sent an email to Marco Elbe under the subject reference “Mixing Plastics”, attaching a copy of two letters Mr Martin had written on 4 April 2008.
267 The first is a letter written to the State Minister of Water for South Australia, Ms Karlene Maywald MP. The second is another letter written to Mr Georganas. In the letter to the State Minister, Mr Martin complains that no response has been received to his letter to SA Water dated 24 January 2008. The failure to respond had been taken up, he said, with the South Australian Ombudsman. In the letter to the Minister, Mr Martin pressed the notion that AS 2887 should be confined to end of line fittings comprising mechanical joints only and that ongoing certification of all drainage and waste fittings involving the use of solvent cement joints:
… manufactured under the auspices of AS 2887 be suspended until such time as those in authority can unequivocally decide and accept, full responsibility for the method of connection of dissimilar plastics materials in sanitary plumbing systems.
[emphasis added]
268 Plainly, Mr Martin was seeking to achieve a position of suspending certification under AS 2887 of the Plastec fittings which would have the effect of making it unlawful to sell or use them. In the letter to Mr Georganas (the Federal Member for Hindmarsh), Mr Martin attached a copy of his letter to Minister Maywald and other correspondence.
269 On 14 April 2008, Mr Martin sent an email to Marco Elbe, Des Grevell and others under the subject reference “Mixing Plastics Correspondence to SA Water”. That correspondence consisted of a letter dated 13 April 2008 to Ms Anne Howe, CEO SA Water. In that letter, Mr Martin pressed the notion that those in authority who have permitted intermixing of ABS/ASA and PVC-U pipe and fittings may well be exposed to litigation as being “derelict in their duty of care” to the industry and the community for not ensuring that dissimilar plastics products have “passed stringent long term compatibility testing prior to being permitted to be intermixed in plumbing systems”. Mr Martin contended that “those in authority” by “permitting” the intermixing of dissimilar solvent cement joined plastics pipes and fittings are “contravening the plumbing Codes and Standards that they profess to uphold”. The letter began by observing that plumbing products, certified under the National WaterMark Scheme are eligible for sale nationally. In the letter, Mr Martin on page 2 asserts in bold emphasis the following matters. Apart from standard testing, pipe joint assemblies of dissimilar plastics materials “need to be thermal cycle tested”; such testing is “absolutely essential” to verify the integrity and longevity of the assemblies; bonded areas of a joint are subjected to “a 30% thermal stress loading within the bonded area of the joint from the outset”; and the industry and many authorities in Australia and New Zealand are awaiting the release of “a ‘statement of substantiation’ to justify or negate, the intermixing of ABS/ASA pipe and fittings with PVC-U pipe and fittings in plumbing systems” [the emphasis in italics in these passages is added].
270 On 2 May 2008, Marco Elbe sent Mr Martin an email attaching a glossary of terms for AS 3500 for solvent cements and a further email on the same topic on the same day.
271 On 12 May 2008, Mr Martin sent an email to Marco Elbe and Des Grevell and others on the topic of “Mixing Plastics – Product Warranty” attaching a copy of Mr Martin’s letter to Mr Blair at Standards Australia dated 9 May 2008 under the reference “Mixing Plastics”.
272 In that letter, Mr Martin says that much controversy has prevailed in Australia during the recent months concerning the intermixing of ABS or ASA plastics into PVC-U pipe and fittings systems incorporating solvent cement joints. The controversy is a controversy in significant part agitated by Mr Martin and SP. In the letter to Mr Blair, Mr Martin says that on 7 May 2008 he had been told by Mr Moore of SA Water that “thermal cycling tests had been conducted on ABS/ASA to PVC-U joint assemblies”. Mr Martin says that he had requested a copy of the report and associated documentation, through Mr Moore, so that Mr Martin “[could] review the outcome of the testing undertaken, who conducted it and where it took place”. Mr Martin says that it is “alleged that the testing was successful”. Mr Martin records that Mr Moore said that AS/NZS3879 would be amended to accommodate solvent cements for use for “PVC (PVC-U and PVC-M) and ABS pipes and fittings …”. Mr Martin observes that “other Standards will also need to be amended”: AS/NZS3500, AS/NZS2032, AS/NZS1260 and WSSA(WSA)117. Mr Martin, on page 2 of the letter, asserts that Plastec has failed to comply with the applicable Standard and has failed to honour the WaterMark licensing arrangements which include a warranty.
273 On 11 May 2008, Mr Martin sent a further letter to Mr Georganas MP further pressing the earlier issues.
274 On 11 June 2008, Mr Martin sent an email to Marco Elbe, Des Grevell and others on the topic of “Mixing Plastics” attaching a copy of Mr Martin’s letter to Mr Otto Marr, Project Manager, Committee PL-021, Standards Australia dated 10 June 2008. Mr Martin asserted a number of things in that letter consistent with his earlier position and concluded by saying:
The general consensus however is that ABS/ASA plastics materials should not be bonded joined together with solvent cement if longevity is an objective as they are entirely different materials. “A mechanical joint or elastomeric joint is recommended where such joints are required”.
[Mr Martin’s emphasis]
275 That letter was copied to “Members of Industry and others”.
276 On 11 June 2008, Mr Martin sent Marco Elbe and Des Grevell and others an email attaching a copy of his letter to Mr Michael McGuinness, Chairperson, National Plumbing Regulators Forum. The letter is in the same terms as the letter to Mr Marr.
277 On 19 June 2008, Mr Martin sent an email to Marco Elbe attaching a schedule for a meeting the following day. Mr Martin said that he would see Marco Elbe at 7.45am the next day at Mr Elbe’s house.
278 On 8 July 2008, Mr Moore of SA Water, sent an email to Mr Martin which was copied to Mr Blair and Ms Howe. In that email, Mr Moore, SA Water’s Principal Materials Scientist, said this:
Dear Ralph,
Further to your letter of June 11, I can advise I am in receipt of a NATA report on the successful thermal cycle testing of ASA/PVC and ABS/PVC solvent welded joints. The testing was carried out even though at the last PL 21 meeting it was considered such a test was unwarranted. The report has been provided as commercial in confidence and as such I am unable to provide you with a copy of the report however I can advise the following testing method was adopted
1. Construct samples as required by AS/NZS3879:2006 Appendix D 4.1. For ease of testing the pipe should be PVC and coupling ASA and ABS multiple samples should be made to cover assessment of ASA and ABS materials.
2. Prepare and weld specimens in accordance with AS3879:2006 – D4.2
3. Conduct pressure test in accordance with AS3879:2006 D4.2.
4. Provided joint passes conduct thermal cycling in accordance with AS2888.8 however utilising conditions of the hot/cold reservoirs of 60°C and 5°C rather than 80°C and 20°C as indicated in AS2888.8.
5. After thermal cycling, retest pressure test in accordance with AS3879:2006 D4.2.
The testing which has been carried out has used established proven test methods and while they may vary from your proposal I am of the opinion the test method adopted has provided an equal or better indication of the performance of these joints. In addition, testing data to ATS5200.055 (draft 2 February 2008) Appendix B Shear Strength (AS3879 modified) has been conducted on combinations of PVC/PVC, PVC/ABS and PVC/ASA and has been successfully completed in March 2008 under the supervision of a NATA registered laboratory.
The results of all of this testing provides sufficient proof of the ability and suitability of jointing these dissimilar materials for use in nonpressure applications.
I trust this alleviates your concerns and draws this matter to a positive conclusion.
…
Greg Moore
[The emphasis in bold is that of the author. The emphasis in italics is added]
279 On 13 July 2008, Mr Martin wrote a letter to Mr Moore responding to the email of 8 July 2008.
280 In that response, Mr Martin notes that Mr Moore’s reference to a letter of 11 June 2008 is a reference to Mr Martin’s letter to Mr Marr at Standards Australia which had been copied to Mr Moore. Notwithstanding the information in Mr Moore’s email, Mr Martin said that American and European authorities and plastics pipe and fittings manufacturers “do not recommend that ABS and PVS-U pipe and fittings be joined together with solvent cement”. Mr Martin reasserted his views about AS/NZS3879 not including a solvent cement for such joining.
281 In the letter, Mr Martin said that notwithstanding the assessment and opinion of the Principal Materials Scientist, Mr Martin did not “recommend the intermixing of ABS/ASA plastics fittings into PVC-U drainage pipe systems”. Mr Martin contested the position that thermal cycle testing was “unwarranted”. On page 2 of the letter, Mr Martin said this:
Of concern also is that although the testing is alleged to have been conducted in a NATA registered laboratory and “The testing which has been carried out has used established proven test methods …”, list of tests as per Australian and Australian/New Zealand Standards provided, “The report has been provided as commercial in confidence and as such I am (you) unable to provide you (me) with a copy of the report …”.
A shadow of doubt exists as to the impartiality of such a test report if indeed such testing was conducted by a manufacturer of ABS/ASA plumbing fittings. - In the knowledge that a manufacturer of an extensive range of ABS/ASA plumbing and drainage fittings has a NATA registered laboratory “in-house” which is understood operates under another name, such testing could be subject to bias, i.e. supportive of their commercial interests.
[emphasis added]
282 Apart from these bias notions raised as an additional matter in answer to the information given to Mr Martin by Mr Moore on 8 July 2008, Mr Martin reasserted in his 13 July 2008 letter his earlier views, and discounted what he described as “some comfort” which might otherwise be gained by some people from the testing examined and accepted by Mr Moore.
283 On 13 July 2008 at 5.38pm, Mr Martin sent by email a copy of his rebuttal letter of 13 July 2008 to Mr Moore, to Marco Elbe, Des Grevell, Paul Trantini, Mr Paul Worthington and Mr Andrew Clarke. Those addressees were described as the “Group 2 CC’s”. Mr Martin also sent that email to 12 “Group 1 CC’s” representing addressees at Standards Australia, SA Water, SAI Global and one addressee at Iplex Pipelines.
284 On 13 July 2008, Mr Martin also sent a copy of his rebuttal letter of 13 July 2008 to Mr Otto Marr at Standards Australia and to 11 other addressees including Mr Blair, Ms Howe, Mr Fitzpatrick, Mr Clark, Mr Battaglia, Mr Maffucci, two additional addressees from Standards Australia and two additional addressees from SAI Global, and Mr Alan Whittle from Iplex Pipelines. Mr Lee Fitzpatrick sent that email on to Mr Moore.
285 On 18 July 2008, Mr Moore sent an email to Mr Martin saying that Mr Fitzpatrick had sent on that email to him and that Mr Marr would respond to Mr Martin directly. However, Mr Moore said that the information he had provided to Mr Martin was provided in consultation with Mr Marr. Further, Mr Moore said this:
Can I suggest you make a time to come in and talk through some of your issues and I will show you a copy of the reports but as previously indicated I can’t provide you with copies.
[emphasis added]
286 Mr Martin did not take up that invitation.
287 On 10 August 2008, Mr Marr of Standards Australia sent an email to Mr Martin (copied to others) advising Mr Martin that Mr Moore’s response reflected the “opinion and decisions of the Committee in this matter”.
288 On 25 August 2008, Des Grevell sent an email to Marco Elbe copied to a group list described as “Storm Plastics, Qld” under the subject reference: “PLASHIT SWIVELS”. In that email, Des Grevell said this:
Carton of Plashit swivels despatched via express post today from Loganholme Post Office at 9.36am, Ref …, delivery due Tuesday 26th in Adelaide.
289 On 2 September 2008, Marco Elbe sent David Pezzaniti an email under the reference “Product Testing for Opposition Swivel Joint” confirming that SP believed that the Plastec swivel joint fitting had been certified without passing all relevant tests required by the Standard as Plastec has “their own in house NATA Certified Laboratory called The Queensland Testing Laboratory”. Marco Elbe asked David Pezzaniti to confirm with Standards Australia the correct testing methodology for hydrostatic testing of the Plastec fittings (both the swivel and expansion joints). Marco Elbe directed David Pezzaniti’s attention to that part of ATS5200.055:2008 requiring the fitting to be “tested unrestrained over the full range of movement”.
290 On 5 September 2008, under the same reference, Marco Elbe forwarded his email addressed to David Pezzaniti, to Mr Martin.
291 Mr Martin formulated a letter dated 22 September 2008 addressed to Marco Elbe which addresses “notations” compiled by him for the testing of Storm Plastics combination swivel and expansion joint assemblies. The first notations concern what is described as “Leaktightness Testing”. Mr Martin sets out the working parameters of the assembly and says that the integrity of the assembly is reliant on the ability of the elastomeric sealing rings to perform in service and meet the minimum requirements. Mr Martin refers to ATS5200.055 (“in Final Draft form dated 29.05.2008”) and describes the ATS as intended to embrace specific products. Mr Martin, in his notes, suggests that to:
… align the testing in accordance with Clause 9.3 of ATS5200.055 and to manage the leaktightness testing of the elastomeric seal in the swivel joint of the test specimens, in isolation from the expansion joint, the spigot and socket section and the elastomeric seal ring that make up the expansion joint component of each test assembly is removed from the socket of the inner core of the swivel joint . In lieu of the expansion joint a section of pipe is substituted and hot air welded into the socket of the inner core component.
292 As to the hydrostatic pressure test, Mr Martin said that to provide definitive performance test data the following detailed procedure should be followed:
1.1 With the pipe on one side of the swivel joint secured/restrained, and the necessary preparatory work completed, the hydrostatic pressure shall be applied gradually in stages … With the pressure being maintained two manual operations shall be undertaken at each stage :
1.1(a) The unrestrained pipe from the swivel joint shall be moved up and down two times to the maximum angular deflection from access of the secured pipe; and
1.1(b) with the unrestrained pipe returned to the inline position it shall be moved to a position of maximum angular deflection and rotated slowly around the axis of the secured pipe for two complete revolutions.
293 The remainder of the letter sets out other notes for the expansion joint testing and the liquid infiltration test.
294 On 22 September 2008, Marco Elbe sent David Pezzaniti an email attaching Mr Martin’s letter of 22 September 2008, saying “Ralph Martin has compiled some supplementary requirements for the testing of Swivel Joints in line with AS/NZS1260 and ATS5200.55” [emphasis added]. Marco Elbe requested Mr Pezzaniti to speak with him before undertaking the tests.
295 On 16 October 2008, Marco Elbe sent Mr Tim Golding an email requesting the results of particular vacuum tests (the liquid infiltration test) undertaken the day before “so as I can pass them on to Ralph”. That email also attached a copy of a drawing for the diametrical distortion test rig. The results were sent to Marco Elbe that afternoon.
296 On 29 October 2008, Marco Elbe sent an email to David Pezzaniti (cc to Tim Golding) attaching “Ralph Martin Draft Document for Consideration Re Swivel Testing.DOC”. In that email Marco Elbe observed that:
Ralph Martin has placed together a Draft Document for additions to the Report for your consideration Re the current Hydrostatic Vacuum Testing for Storm Plastics and Plastec Swivel Joints.
We will also put together a letter to accompany your report describing why the testing was conducted and intend to submit this to SAI-Global but will run it past you first.
Can you please let me know any comments you have on Ralph’s document or if you wish to talk to Ralph or myself regarding any of this document.
[emphasis added]
297 “Ralph’s document”, as described by Marco Elbe, is an 11 page document or report which has endorsed at the top “Draft Document for Consideration” under that, it has the word “Letterhead”. The draft is addressed to David Pezzaniti at the University of South Australia and also to Tim Golding, a technical officer, at the Centre for Water Sciences and Systems. The document is described as “TESTING REPORTS with comments and detailed explanations”. The applicant is described as Mr Marco Elbe, Manager, Storm Plastics (SA) Pty Ltd. The document on page 1 sets out test reports concerning hydrostatic pressure tests and leaktightness vacuum tests. It addresses “swivel joints in isolation” and fabricated plumbing fittings. It describes the test specimens as 100mm DWV swivel joint assembly pipe fittings manufactured by Plastec and also Storm Plastics. It says that the test specimens were selected at random from cartons supplied with each carton containing 12 samples. Page 2 describes the Plastec swivel joint assemblies by reference to test specimens 1, 2 and 3. The document recites that in addition to the test specimens which were factory sealed assemblies, “a sectioned sample was also presented”. Page 2 also describes the markings on the Plastec test samples and then goes on to describe the composition of Plastec’s swivel joint as a fabricated assembly comprising five components, which are then extensively described.
298 After that, the document sets out in bold the proposition that the integrity of the seal within the assembled joint is reliant upon the bond between the flange section and the outer housing in combination with a constant pressure being maintained against the external surface of the semi-spherical socket section. On pages 2 and 3, the document describes the Storm Plastics swivel joint test specimens. At page 3, the document refers to ATS5200.055 as the only Australian Standards document that outlines a technical procedure for the testing of swivel joints, and the hydrostatic pressure test is described as cl 9.3 of the ATS. The clause is quoted.
299 The document at page 4 then records that:
It was submitted by the applicant [Mr Elbe, SP] that the statement of testing procedures is deficient as there was no procedure set down to test the “fitness for purpose” of the respective fittings at low hydrostatic pressure, ie. comparable to the application and designed working environment of the fitting to be assessed.
The applicant stated that it is presumptive to assume that because a fitting may be proved watertight at a high hydrostatic pressure it was not a guarantee that it would remain watertight at low hydrostatic pressures particularly “over the full range of movement”, the performance range expected of the fitting as claimed by the manufacturer.
[emphasis added]
300 These notions reflect the propositions Mr Martin had been putting over time as the principal architect of the criticism of the Plastec fittings.
301 Mr Martin then goes on at page 4 to say this, consequent upon the two paragraphs quoted above:
In consequence, the testing procedure criteria for hydrostatic pressure tests was extended and detailed so as to provide definitive performance test data. The variations to the content of Clause 9.3 is as follows:
1. With the pipe on one side of the swivel joint assembly rigidly secured, the necessary preparatory work completed and the unrestrained end of the pipe in-line with the secured opposing end, the hydrostatic pressure shall be applied gradually in stages of 10 + 5 -0 kPa.
There shall be a retention time of 1 + 1 -0 min at each stage of testing during which time two manual operations shall be undertaken on the specimens being tested. The operations shall be conducted in the following order:
2. The unrestrained pipe from the swivel joint shall be moved up and down two times to the maximum angular deflection from the axis of the secured pipe; and
3. With the unrestrained pipe returned to the in-line position it shall be moved to a position of maximum angular deflection and rotated slowly around the axis of the secured pipe for two complete revolutions and returned to the in-line position in readiness for the next stage.
302 The document then goes on to note that prior to the commencement of testing, each joint assembly was moved in what Mr Martin describes as a “dry state” as set out in points 2 and 3 as quoted to ensure that “the joint area was ‘freed-up’”. The report notes measurements of the mean outside diameter of the outer housing and notes that, at all increments of pressure, the procedure set out in points 2 and 3 as quoted were performed. Page 5 of Mr Martin’s document then records that the Plastec 100mm swivel joint assembly demonstrated leakage under the testing methodology as described by Mr Martin and thus the specimen (PLS-1) failed the test. Mr Martin notes that Plastec’s test specimen PLS-2 (100mm swivel joint assembly) also failed that test as did Plastec’s test specimen PLS-3. Plastec’s test specimens PLS-4 and 5 also failed. As to the Storm Plastics specimens, Mr Martin’s document records that each of the test specimens passed the tests stipulated by Mr Martin.
303 As to the “leaktightness – vacuum tests”, Mr Martin’s document quotes cl 9.4 of ATS 5200.055:2008 and observes that vacuum testing was undertaken “as being considered the simplest test method”. The document notes that AS/NZS1462.8 is referenced in the ATS. Mr Martin also says in the document that the applicant (Mr Elbe, SP) considered it prudent to “expand the procedures to provide definitive performance data commensurate with the ‘worst case scenario’ likely to be expected within a drainage system should a negative pressure ever occur in such a system”.
304 Mr Martin describes the expanded procedure in these terms:
Prior to the commencement of testing each joint assembly was moved in a dry state in the same manner as set out in Points 2. and 3. (of the hydrostatic testing report), to ensure that the joint area was “freed up”.
A trial test was undertaken and a 2 stage testing methodology was developed.
The vacuum was applied to - 40kPa, the test specimen isolated and moved as set out in Points 2. and 3. during a 10 + 5, -0 min observation period ...
The tolerance band set out for the negative pressure test was treated as the limits of permitted leakage over the holding time given that numerous other factors, apart for the joint seal, become drawn in for “leakage” consideration over such holding periods.
305 Plastec’s test specimens PLS-1, 2 and 3 passed that test. Storm Plastics test specimens 1, 2 and 3 passed that test.
306 This document, prepared by Mr Martin, reads as if it is the report of the University of South Australia. It contains a narrative description which reflects an acceptance by those conducting the tests, as objective experts, that extensions or variations proposed by the party commissioning the tests, Mr Marco Elbe of SP, ought properly to be made to the testing procedures (and in particular the hydrostatic pressure tests). All of the test data has been selected for inclusion by Mr Martin.
307 On 18 November 2008, Mr Martin sent an email to Marco Elbe and David Pezzaniti under the subject reference “Plumbing Products: Credibility of Certification” attaching a draft letter to be sent by Mr Martin to Mr Colin Blair, General Manager, Standards Development, Standards Australia also dated 18 November 2008.
308 The draft letter is marked “Marco and David – DRAFT – FINAL??”
309 In the letter to Mr Blair, Mr Martin says that complaints have been received from interstate drainage contractors saying that they had had disappointing experiences with Plastec ABS/ASA swivel joint assemblies leaking after installation. Mr Martin also says that these reports of product failures do not reflect favourably upon the certifying authorities or those charged with the duty of developing certification standards. This is the position Mr Martin had taken often, previously. Mr Martin says that the “products in question” were initially certified under AS 2887 and later “re-certified” as complying with ATS5200.055 published on 21 October 2008. Mr Martin then says that doubts have arisen regarding the “credibility of the alleged certification”. He then says that a review of ATS5200.055 was undertaken with emphasis directed to the hydrostatic testing procedure set out in the ATS. He also says that “a need to amend the hydrostatic testing procedure became apparent”. Mr Martin said that the hydrostatic testing lacked connection with the working environment into which such fittings are expected to function and in consequence a “variation (amendment), to the test procedure was developed and an independent testing authority engaged and instructed to ascertain the merits of the additional testing” [emphasis added].
310 Mr Martin then says that comparable market alternative PVC-U swivel joint assemblies [Storm Plastics products] were also submitted for testing. Mr Martin says that the testing was “conducted by the University of South Australia at their Mawson Lakes facility”. Mr Martin says that the PVC-U swivel joint assemblies passed the “specified variations to the testing procedures at the lower pressures without leakage whereas the ABS/ASA swivel joint assemblies leaked under the existing testing procedure of ATS5200.055 and more profusely at lower pressures” [emphasis added].
311 Mr Martin observes in bold emphasis in the letter that the outcome of the testing “confirmed that an amendment to the hydrostatic pressure testing procedure of ATS5200.055 is warranted”. He asserted that notwithstanding the hundreds, maybe thousands, of ABS/ASA swivel joint assemblies already in the field nationally and in New Zealand, non-compliance with the “additional testing requirements” may also jeopardise the integrity of future drainage systems into which ABS/ASA swivel joints are installed.
312 Mr Martin further observes that “a fitting that leaked at the onset [outset] could hardly be deemed ‘fit for purpose’”.
313 Mr Martin urged Standards Australia, through the relevant authorities, to “action these findings as a matter of urgency to rectify the situation” [emphasis added].
314 Mr Martin’s letter makes reference to an enclosure in these terms: “Encl: Uni SA Test Report”. The letter proposes to enclose the document/report written by Mr Martin except that it contains one change on page 1. Instead of describing the Applicant, that is, the commissioning party, as Mr Marco Elbe, Manager, Storm Plastics (SA) Pty Ltd (Plastec’s primary rival in the market), Mr Martin changed the document so that the Applicant is described as Mr Ralph Martin, Consultant (and his address in South Australia).
315 The narrative part of the so-called report was written by Mr Martin who also postulated and directed the expanded or amended tests to be undertaken. As to the test data, Mr Martin selected the test data to be inserted in the report (and inserted it in the report as written by him) and determined the data to be left out. Mr Martin’s draft letter to Mr Blair of Standards Australia pretends that the report (and the findings) is an entirely objective report, in every sense that a University Report might be expected to be, of the University of South Australia.
316 On 18 November 2008 at 11.38 p.m., Mr Martin sent the email to Marco Elbe and David Pezzaniti attaching a copy of Mr Martin’s proposed letter to be sent to Mr Blair.
317 On 19 November 2008 Marco Elbe sent an email to David Pezzaniti under the subject reference “Swivel joint test report for Ralph Martin” talking about Marco Elbe’s discussion with Ralph Martin. The email says this:
I have been speaking with Ralph Martin in regards to the Plastec Swivel Joint testing. I have gone through Ralph’s Draft letter to Colin Blair and the testing report with comments and detailed explanation dated 18/11/08 and I am happy with the content of this. I agree it would be best if Ralph Martin is the applicant and I believe you have discussed this with him. We would like to get this report sent to Colin Blair as soon as possible. If you had any queries with any of this please do not hesitate to contact me.
318 Mr Martin said in oral evidence that he had no recollection of any discussion with Marco Elbe about that matter.
319 On 8 December 2008 David Pezzaniti sent an email to Marco Elbe attaching the draft report of the AIT Centre. The attached report is signed by David Pezzaniti; bears the date 28 August 2007; makes reference to “Fitting hydrostatic Ressure [Pressure] Tests”; makes reference to ATS5200.005[055] Cl 9.3 (modified); and addresses the report to Mr Marco Elbe, Storm Plastics (SA) Pty Ltd at the Edwardstown address.
320 On 15 December 2008, David Pezzaniti sent an email to Mr Martin attaching the AIT Centre Report “as discussed this morning”. The report is now dated December 2008. It continues to be addressed to Mr Marco Elbe. It refers to two hydrostatic test procedures, one conducted under cl 9.3 of ATS5200.005[.055] and one conducted under a modified test procedure as prepared by “Storm Plastics”. It says that both tests were conducted on the Plastec specimens while only the modified test was conducted on the Storm Plastic specimens. The report concludes that the Plastec 100mm swivel joint failed both sets of tests. The report reflects the modified test written by Mr Martin and adopts the content in table form of Mr Martin’s document.
321 On 29 December 2008 Mr Martin formulated a document or letter addressed to David Pezzaniti. In that letter Mr Martin said this:
As you are no doubt aware by now I have spent some of my “break” on the “Report” on the hydrostatic pressure testing conducted on the Plastec and Storm Plastics swivel joint assemblies. In addition to a hard copy a disk is also herewith enclosed.
The level of technical understanding of the audience that I proposed to distribute copies of this report will vary considerably therefore I have endeavoured to make it as comprehensive as possible within the framework of the text presented.
Ultimately the final decision is, without question, yours to make.
Page breaks have not been made, but obviously each report in the body of the document should stand alone.
Of particular importance is that the date you received the products, being the swivel joint assemblies for random selection of the test specimens, should be included in the preamble of the report “1. TEST SPECIMENS.”
Current calibration certificates used in the conduct of the testing are to be included.
Many thanks for your co-operation and assistance with this project and I look forward to the early arrival of the completed report.
322 Mr Martin recalls sending a disc containing this letter to David Pezzaniti.
323 On 23 January 2009, Mr Martin sent an email to David Pezzaniti which said: “please find the amended report below”. The report attached to that email has been amended by Mr Martin to record him as the party to whom the report is now addressed, reflecting the view expressed by Marco Elbe to David Pezzaniti in Mr Elbe’s email to Mr Pezzaniti of 19 November 2008, said to have been the subject of discussions between David Pezzaniti and Ralph Martin.
324 Page 5 of Mr Martin’s document as sent to David Pezzaniti on 23 January 2009 incorporates a section under the heading “TEST SPECIMENS”. In that section the report recites that: “Twelve (12) Plastec and twelve (12) Storm Plastics swivel joint assemblies were provided in separate cartons to the Test Laboratory on …?...?... 2008”. That section says that five test specimens from each manufacturer were randomly selected from the product sample size of twelve and each specimen was given an identification number.
325 As to delivery of the samples, the AIT Centre did not seek out for itself the products by batch and make the test selections. The evidence is that Marco Elbe and Ralph Martin delivered the samples to the AIT Centre.
326 On 23 January 2009, Marco Elbe sent an email to David Pezzaniti under the reference “Amended Test Report” in which he says this:
As discussed on the phone today here is the revised report from Ralph Martin. I delivered the Box’s of Plastec Swivels and the Box of Storm Plastics Swivels on the 29th August 2008.
Can you please go through the report and get back to me as soon as possible as we wish to get this report out to the relevant parties.
If you have any queries please don’t hesitate to contact myself or Ralph Martin anytime.
[emphasis added]
327 Mr Martin gave evidence that he was present when Mr Elbe delivered each company’s swivel joints to the University of South Australia.
328 On 12 March 2009, David Pezzaniti sent an email to Marco Elbe under the reference “report” saying:
I’d like to complete the report and for me it would be best if Ralph was present at the time – would this be possible?
[emphasis added]
329 On 27 April 2009, Mr Martin sent an email to Marco Elbe and David Pezzaniti under the reference: “Ralph revised Swivel Report Final”. The email attaches a file consisting of the Final Report. The report is addressed in proposed final form to Mr Ralph Martin, Consultant, and is described as a report of the [AIT Centre]. It is now dated March 2009 and appears on the letterhead of the University of South Australia. It reflects the addition suggested by Marco Elbe under the heading “Test Specimens” except that it has no reference to Marco Elbe’s role in delivering each batch of products for selection of the test samples, merely referring to Ralph Martin having provided the relevant cartons. The final report, to the extent of the inclusions, reflects with some minor variations the draft document developed by Mr Martin. It reflects his selection of the test results to be included and his selection of the test results to be excluded. There can be no doubt that the final report evolved out of Mr Martin’s authorship and editorial elections for inclusions and exclusions. The most notable exclusion is Mr Martin’s election to leave out all of the liquid infiltration test results which of course were favourable to Plastec.
330 On 29 April 2009, David Pezzaniti sent an email to Mr Martin thanking him for his “review” of the report. The email attached the Final Report in pdf form.
331 On 13 July 2009, Mr Martin sent a letter (43 pages in all) to Ms Mary Krezo, Coordinator, Customer Information Service, Standards Australia, addressing this matter:
TOPICS: PLUMBING AND DRAINAGE – INDUSTRY ISSUES – TECHNICAL STANDARDS/SPECIFICATIONS, PLUMBING CODE OF AUSTRALIA & NEW ZEALAND
“A DEFECTIVE DRAINAGE FITTING”
POSSIBLE RAMIFICATIONS –
TEST REPORT
332 The letter, described as a “paper” is said to be “directed to the revision of; (or demise of): Australian Technical Specification (ATS) 5200 Part 055 – ATS5200.055:2008 …” [emphasis added as to italics].
333 In the letter of 13 July 2009, Mr Martin collects in one place almost all of the contentions he had been making about these matters over the previous three years (approximately). He contends that ATS5200.055 “meanders” into the field of plumbing and drainage installation codes and the “jurisdiction of others”; complaints of leaking swivel joints had been circulating since 2007, through 2008 and up to the date of the letter; this “independent review” became necessary; fittings that leaked from the outset are not fit for purpose; AS 2887 was never an appropriate Standard for evaluating the Plastec fittings; ATS5200.055 requires revision; the Plastec fittings failed the hydrostatic pressure tests of “ATS5200.055 and the informal addendum” [emphasis added]; the attached Test Report of the University of South Australia demonstrates that to be so; and many other matters as previously propounded by Mr Martin.
334 At para A2.28, Mr Martin emphasises that independent tests at an independent testing authority (the University of South Australia) “proved beyond doubt” that a leakage problem exists in the Plastec fittings; a “flaw” was detected in the most fundamental of tests (the hydrostatic pressure test) set out in ATS5200.055; “minor variations” to the testing procedures of ATS5200.055 were “developed” and an independent testing authority was engaged and instructed to “ascertain the merits” of the “additional (informal) testing procedure”.
335 Mr Martin says in the 13 July 2009 letter at para A2.28 that “[t]he original intent of the testing set out at ATS5200.055 was unchanged” [emphasis added].
336 The true position however is that the so-called informal (additional) minor variations to the test protocols of ATS5200.055 were no such thing. They did not reflect the intent of ATS5200.055 as the test required by the ATS was that expressed to be required by cl 9.3 which did not engage the test Mr Martin required to be undertaken. Mr Martin, obviously enough, accepted, by his description of the test as an additional (but said to be informal and minor) variation, that the modified test was a departure from the test regime required by ATS5200.055. The failure of the Plastec fittings to comply with the amended or varied test regime became the basis for the contention that the Plastec fittings failed to comply with ATS5200.055 and that those fittings leaked. It follows that the variation proved to be a significant one. The amended tests Mr Martin required to be undertaken were not those required by the ATS. In fact, the Plastec fittings complied with ATS5200.055 and had been certified to that effect by a CAB in reliance upon test data arising out of tests undertaken by a NATA certified laboratory. Moreover, the independent report was not independent as it had been commissioned by Plastec’s rival; fundamentally written and finalised by Mr Martin both as to the narrative and the tabular test data; and was based, in part, on testing protocols required by Mr Martin and SP to be undertaken which varied the objective and independent testing regime to be adopted in properly testing as a controlled objective set of tests, the compliance in terms of performance requirements of the Plastec fittings to the ATS.
337 If Mr Martin had been simply concerned to determine whether the Plastec fittings complied with ATS5200.055, the tests at the AIT Centre would have been directed to that question rather than a comparative test as between Plastec’s fittings and the substitutable fittings of Plastec’s rival, Storm Plastics.
338 On 15 July 2009, Mr Martin sent the 43 page document by email to South Australian and Queensland Government Officers under the reference “Report - Defective drainage fitting – Plumbing issues – [ATS5200.055]” [emphasis added]. The email described the “paper” as self-explanatory and as one presented for “your information and attention as appropriate to your professional position” [emphasis added].
339 On 16 July 2009, Mr Martin sent an email to SP (Marco Elbe, Jenny Bennett, Paul Trentini, Des Grevell), SA Water (Lee Fitzpatrick, Jeffrey Clark) and David Pezzaniti under the same reference as above, also describing the attached “paper” as self-explanatory.
340 On 20 July 2009, Mr Martin sent the 13 July 2009 document to the Australian newspaper.
341 At [37] to [44] of these reasons, I have already explained the sequence of exchanges leading to the final form of Tony Purdon’s document after “beefing up”, to use Mr Martin’s language, by Mr Martin, that began as Mr Purdon’s draft dated 13 September 2009.
342 On 28 September 2009, Marco Elbe sent Tony Purdon and Ralph Martin a copy of an article appearing in a particular magazine on the topic of “Standards”.
343 On 29 September 2009, Mr Martin sent an email to Anne Howe, Minister Maywald, Minister Rankine, Minister Anthony Albanese, Mr Georganas MP, Member Hanson (SA Parliament), R Silberberg (HIA), Mr McGuinness (Queensland Government), Mr John Park (Victorian Government), M Read (Western Australian Government), Alan Humphreys (Tasmanian Government – Justice Department), Mr Hadfield (Northern Territory Government), Mr Les Barnard (Sydney Water), Mr Worthington, Mr Fitzpatrick and Mr Clark. The subject is described as the “Australian plumbing industry”. However, the subject is now also described as “Alleged covert behaviour of some administrators and regulators”. The text is in these terms:
To those in authority and or those associated with the plumbing and building industries.
This is another chapter of ongoing communications, it comprises three (3) documents.
A comprehensive paper was circulated in July 2009 and a report dated 22 September 2009, with an appendage, has recently come to hand. It is worthy of your attention.
The coverage of the report overlaps issues presented in the first paper and highlights additional anomalies in the conduct of those entrusted in the governance and administration of the Australian plumbing industry.
Presently some regulatory authorities are allowing plumbers to install ABS/ASA plastics drainage pipe fittings into PVC-U plastics sanitary drainage pipe systems despite the fact that they, those plumbers involved, are exposing themselves to litigation.
The practice of intermixing dissimilar plastics pipes and fittings using solvent cement joints contravenes the Plumbing Code of Australia for reasons detailed in the documentation attached.
…
344 The reference in the email to the July 2009 paper is a reference to Mr Martin’s own paper of 13 July 2009. The reference to a report having “recently come to hand” is a reference to the Purdon letter as amended and adopted by Mr Martin in the manner earlier described. Mr Martin refers to it as if he had had nothing to do with its development and final emanation. The email also wrongly asserts that the practice of joining ABS fittings to PVC-U pipes contravenes the PCA.
345 On 1 October 2009, Mr Purdon sent an email to Marco Elbe, Des Grevell and Ralph Martin concerning a letter Tony Purdon intended to send to a company called Vinidex. That company had published a statement or letter saying that testing carried out by a chemical company had demonstrated that Vinidex’s Type N solvent cement could be used to bond ABS and PVC components. Mr Purdon proposed a response to that letter by which he would ask Vinidex three questions. He sets out the proposed response in the email to Elbe, Grevell and Martin. He also says “I’ll take care with Vinidex at this stage as this letter was forwarded to [Banana Shire Council]–keep this in confidence please”.
346 On 2 October 2009, Marco Elbe sent an email to Mr Kavanagh concerning his discussion with Mr Kavanagh about the Vinidex issue so as to keep Mr Kavanagh “up to date with the ABS to PVC” solvent cement issue. On 6 October 2009, Mr Martin sent an email to Tony Purdon attaching the material attached to Mr Martin’s email of 29 September 2009 which he described as his “bulk group send-out last week”.
347 On 9 October 2009, Mr Martin sent a letter to the City Councils of Ipswich, Stanthorpe and Southern Downs taking issue with responses by the Ipswich City Council to correspondence from Mr Hawthorne of Plastec seeking to address the observations contained in Mr Martin’s material of 29 September 2009. In these letters Mr Martin further agitates the contention that ABS/ASA fittings cannot be joined to PVC pipe.
348 On 26 October 2009, Mr Martin sent an email to many addressees, of a letter Mr Martin had formulated dated 25 October 2009, addressed to the Chairman of the Association of Accredited Certified Bodies (“AACB”), Standards Australia Committee WS-031. The email was sent to Mr Tucker (Standards Australia), Tony Scotton (SAI Global), the Queensland Premier, Mr Michael McGuinness, Ipswich City Council Officers, Mr Georganas MP, Ms Anne Howe (SA Water), Minister Maywald, Minister Gago (SA Government), Mr Hunter at Southern Downs Council and Shayne La Combre at Plumbing Solutions.
349 The letter (and email) attached a document described by Mr Martin as “a comprehensive paper and report pertaining to non-compliance, procedural inadequacy, contradictions and a very poorly developed (ATS) for a particular type of plumbing fitting”. Mr Martin asserted in this letter that “the construction of the ATS exhibits an extreme bias in support of a specific manufacturer’s products in a tone not normally documented and presented into the public domain under the auspice of Standards Australia” [emphasis added]. Mr Martin asserted that the “integrity of the Committee members who developed the document could be deemed questionable” [emphasis added]. Mr Martin also asserted that “it has been determined [that is to say, determined by Mr Martin] that the AACB are to investigate each and every issue raised and collate and forward a detailed response to the paper and report as presented in an open and technically supportive manner” [the emphasis in bold is that of Mr Martin; the emphasis in italics is added]. On page 2 of the letter, Mr Martin identifies the attached documents as the documents of 13 July 2009 and 29 September 2009.
350 On 30 September 2009, Mr Casey of Plastec sent an email to Mr Jeffrey Clark attaching copies of Certificates of Conformity issued to Plastec. In the email, Mr Casey sought to address issues arising out of the distribution of material into the marketplace “from a private plumbing consultant” concerning the joining of ABS/ASA and PVC-U materials. Mr Casey sought to demonstrate to Mr Clark that Plastec had obtained certification to ATS5200.055 and attached supporting documentation. Mr Casey said that advice was being sought from SAI Global and ASCPL about aspects of that matter.
Plastec’s response to the Martin material
351 Ultimately Plastec, by its solicitors, wrote a letter of demand to Mr Purdon about the material and, relevantly for present purposes, a letter to Mr Martin on 2 November 2009 by which certain undertakings were sought. They were not forthcoming and these proceedings commenced on 13 November 2009.
352 Interlocutory injunction orders were made on 21 December 2009 pending trial, restraining Mr Martin from making the particular statements described in those orders.
353 The conduct of the proceedings against Mr Martin has, in all practical senses, been conducted by D’Angelo Kavanagh, the solicitors for Storm Plastics. Invoices throughout the currency of the matter were issued by D’Angelo Kavanagh to Mr Martin. However, those invoices were paid by Storm Plastics. Storm Plastics, through Marco Elbe, played a significant role in organising expert evidence from CRT Laboratories Inc. (“CRT”) in the United States in the early part of the proceedings. A letter to CRT providing background and requesting a report was written by Mr Martin and sent on the letterhead of SP under the name Marco Elbe. Marco Elbe sent the letter to CRT by email on 10 December 2009 and actively engaged with D’Angelo Kavanagh and CRT about the matters the subject of that report.
354 More particularly however, the measure of the engagement by Storm Plastics or its interest in the proceedings against Mr Martin can be seen in the payment by Storm Plastics of all of the costs and expenses of resisting the claims of Plastec in the litigation, on behalf of Mr Martin, up to the time when those solicitors and counsel withdrew from continuing to represent Mr Martin, namely, on or about 14 June 2011. Plainly enough, although Mr Martin was the respondent in the proceeding, Storm Plastics had a major interest in resisting Plastec’s claims against Mr Martin which were directed to testing the question of whether the statements made by Mr Martin were accurate, and whether addressees might have been misled or deceived about aspects of the material. The whole thrust of Mr Martin’s agitations had been to secure the withdrawal of the certifications for the Plastec fittings. SP, as Plastec’s rival, was engaged hand-in-glove in the entire process.
355 The total amount paid by Storm Plastics on behalf of Mr Martin’s legal representation in the proceedings is $427,004.36. During the course of cross-examination counsel for Plastec put to Mr Martin that the person who was principally responsible for giving instructions to Mr Kavanagh on the defence of the proceedings on behalf of Mr Martin was, Mr Marco Elbe. Mr Martin was quite evasive in his answers about this matter although when asked “You would agree with that, wouldn’t you?”, he responded, “It may have been the case”, and when it was put to Mr Martin that he was not disagreeing with that proposition he said, “No”. When asked whether he would accept it as true, he said, “It may be absolutely true. I don’t know”. Mr Martin also said that he rather hoped that Mr Kavanagh was the person running the defence and when the proposition was put to Mr Martin that Mr Kavanagh and Mr Elbe were the people “deciding what happened in your defence”, he responded by saying, “It may well have been at the time”.
356 Apart from these legal fees, Storm Plastics (Marco Elbe) had previously paid fees to Mr Martin for consultancy services and the costs associated with Mr Martin attending a conference in Canberra.
357 The background facts to the relationship between Storm Plastics and Mr Martin may well lie in Mr Martin’s acceptance of the fact that Mr Martin Bennett, the Managing Director of Storm Plastics, and Mr Martin had known each other for over 40 years and their friendship had developed as plumbers, although Mr Martin denied they were close friends.
358 In the course of closing submissions, Plastec provided a schedule drawn from each of the invoices issued by D’Angelo Kavanagh to Mr Martin (as addressee) concerning the description of the work undertaken in engaging with Mr Martin. I will not reproduce that schedule in these reasons. However, I have reviewed the invoices and I accept the schedule as an accurate statement of the attendances. I have also had regard to the extensive sequence of email exchanges between Marco Elbe and Mr Le Jeune (CRT); email exchanges between Marco Elbe and Ralph Martin; email exchanges between Marco Elbe and Mr Kavanagh concerning Mr Martin’s statement and affidavits, the affidavits on behalf of Plastec and the general engagement between Marco Elbe and D’Angelo Kavanagh in the conduct of the proceedings on behalf of Mr Martin, and also the engagements with counsel.
359 I have reviewed extensively the sequence of engagements commencing as early as 28 June 2005 between Mr Martin and Storm Plastics and particularly Mr Martin’s engagement with Storm Plastics through Marco Elbe and, from time to time, Mr Bennett. I have done so to determine the scope of the role played by Mr Martin and Storm Plastics inter se in connection with the attack upon AS 2887, ATS5200.055, Plastec and the Plastec fittings. There is simply no doubt that throughout the entire period of the chronology reflected in the analysis of that engagement, Mr Martin was acting, in every practical sense, as an advocate for Storm Plastics in seeking to undermine the acceptance of the Plastec products; undermine the certification under AS 2887; secure the “demise” of ATS5200.055; secure the suspension of the ATS certification with the practical effect of removing the Plastec products from the market; and characterise the conduct of Plastec as collusive and improper conduct in concert with Standards Australia and SAI Global so as to obtain certifications to which it was not entitled, all directed to removing the Plastec products from the market.
360 I am satisfied that as to the representations relied upon by Plastec the true position concerning each matter is this. At all material times relevant to these proceedings (and including the various dates of publication of the Martin material by Mr Martin to each addressee):
1. Plastec has conducted its undertaking of manufacturing and selling the Plastec fittings (as described in the SFASC) in compliance with the requirements of the Plumbing Code of Australia, Regulation 8A of the Standard Plumbing and Drainage Regulation 2003 (Qld) made pursuant to The Plumbing and Drainage Act 2002 (Qld) and in compliance with Australian Standard AS/NZS3500.
2. Plastec has not advertised in a brochure published by it, a method of fixing the Plastec fittings to other products manufactured from PVC-U using Type N solvent cement in contravention of ATS5200.055 as the advertised method of fixing the Plastec fittings to PVC-U materials complies with ATS5200.055.
3. It was not illegal to join the Plastec fittings made from ABS or ASA to a plumbing product made from PVC-U using Type N solvent cement as such joining is expressly contemplated by ATS5200.055.
4. The Plastec fittings were certified with a WaterMark certification complying with ATS5200.055.
5. Plastec did not illegally collude with SAI Global or Standards Australia or both so as to obtain approvals for the Plastec fittings to which Plastec was not entitled.
6. The Plastec fittings brochure referred to at para 16(f) of the SFASC was not untrue or misleading to the extent that it represented that the Plastec fittings had been WaterMark approved to ATS5200.055 as they had such an approval.
7. Connecting Plastec fittings to underground sanitary drainage systems would not breach or otherwise be contrary to Australian Standards having regard to the terms of ATS5200.055.
8. Australian Standards do not require the Plastec fittings to be connected to a pipe or material manufactured from PVC-U by means of a mechanical coupling as ATS5200.055 expressly provides for the joining of ABS/ASA plastics materials to PVC-U plastics by way of a solvent cement.
9. No evidence has been adduced of any failure in a joint made by joining the Plastec fittings to PVC-U materials by means of a solvent cement joined in the manner required by ATS5200.055 and no evidence has been adduced of a failure or “problem” in sanitary plumbing systems for over two years, as represented, through the use of the Plastec fittings and nor is there any basis for contending that “such problems” are “out of hand”.
10. The certifications obtained by Plastec in respect of the Plastec fittings are valid as they were obtained by Plastec from a certifier in accordance with the WaterMark Certification Scheme from a Conformity Assessment Body based upon tests from a testing facility which was independent and thus the certifications can be relied upon, and Plastec has not illegally represented its Plastec fittings as being certified to particular Australian Standards when they are not so certified.
11. Australian Standards published by Standards Australia Limited were and are credible instruments and do not lack credibility by reason of the incorrectness of the matters at paras 1 to 10 as the matters at paras 1 to 10 are correct and there is no evidence to the contrary.
12. Standards Australia Limited has not acknowledged that AS2887:1993 was not a correct Standard for the evaluation of the Plastec fittings and to which the Plastec fittings were certified.
13. The Plastec fittings, considered as part of a line of products manufactured and sold by Plastec, are not defective.
14. The Plastec fittings did not leak from the outset when correctly installed in drainage systems.
15. Five randomly selected Plastec fittings and five randomly selected Storm Plastics fittings were not each subjected to an independent test which proved that the five Plastec fittings failed to meet the requirements of ATS5200.055 whereas such tests demonstrated that the five Storm Plastics fittings did meet the requirements of ATS5200.055 because the test undertaken at the Australian Irrigation Technology Centre within the Division of IT, Engineering and the Environment at the University of South Australia was not an independent test; the test was procured, and paid for, by Storm Plastics; a decision was made by Storm Plastics and Mr Martin after discussions between each other and after the report had been formulated, that the report would be addressed to Mr Martin as the applicant rather than Storm Plastics; the test results included within the Martin material and the Purdon letter do not demonstrate that the five Plastec fittings failed the tests required by ATS5200.055 and that the five Storm Plastics fittings passed such tests; and the Plastec fittings and the Storm Plastics fittings involved in the test were not randomly selected.
16. Plastec did not supply thousands of Plastec fittings throughout Australia and New Zealand which are defective.
17. The report of the University of South Australia attached to the Martin material was prepared for the benefit of and on the instructions of Storm Plastics through the engagement of Mr Marco Elbe and Mr Ralph Martin in their dealings with the University, and the Plastec joints subjected to testing at the University Centre were provided to the Centre by Storm Plastics and Mr Martin rather than procured independently by the University itself.
18. The report of the University of South Australia was written by Mr Martin in the sense that he was the actual author of the report and exercised editorial control over the text of the report and the selection of the test results to be included in the report and those results to be excluded from the report, and Mr Martin directed tests to be undertaken (hydrostatic tests) in a modified form in a way not required by the testing protocols of ATS5200.055.
19. The Purdon letter described as the Purdon Report was not a report prepared independently of any other person as Mr Martin became a joint author of the report by adopting it for distribution in a form which it took after the “beefing up” by Mr Martin of the original draft letter sent by Mr Purdon to Mr Martin.
20. The Martin material distributed on and after 22 September 2009 was influenced in its form by Mr Martin’s pre-disposition to secure the demise of ATS5200.055 so as to remove the Plastec fittings from the market and advance the interests of Plastec’s principal rival, Storm Plastics with whom Mr Martin had enjoyed a commercial relationship since at least 28 June 2005 and a personal relationship with Mr Martin Bennett, the Chief Executive of Storm Plastics for approximately 40 years.
361 In giving evidence about the University Report, Mr Martin said that he “… did in fact draft it up. There’s no two ways about that”. Mr Martin made that observation in the context of seeking to explain why that became necessary. Later in his evidence he described his role a little more narrowly by saying “… it was I who did a lot of that preliminary drafting of that particular report …”.
362 I find that Mr Martin was evasive in many of his answers to the questions put to him about the sequence of exchanges with Marco Elbe and others and the authorship and evolution of the Purdon letter and the University of South Australia Report. I find that Mr Martin was unwilling to confront and answer directly questions about the long sequence of exchanges.
363 These proceedings are concerned with the pleaded statements made in the Martin material distributed by Mr Martin on and after 22 September 2009 (but commencing, on the evidence, on 29 September 2009) by electronic dissemination as attachments to emails using a telecommunications network and through the postal service. Primary liability is asserted against Mr Martin of a contravention of s 52 having regard to s 6(3) of the Trade Practice Act (1974) (Cth) (as the material law).
Further findings
364 I find that each of the pleaded statements are representations of fact as to the subject matter of each statement.
365 I find that each representation was made by Mr Martin by distribution of the Martin material by email communications using a telecommunications network and by use of the postal service.
366 I find that the representations when made were not true.
367 I find that the true position as to each matter the subject of the misrepresentations, and matters related to those representations, is the position set out at points 1 to 20 at para [360] of these reasons.
368 I find that the representations were misleading and deceptive as, by making the representations, Mr Martin urged each addressee to rely upon the truth of the representations when those representations were not true.
In trade or commerce
369 I find that Mr Martin engaged in the conduct as a consultant to Storm Plastics (SA) Pty Ltd. I so find having regard to Mr Martin’s election to describe himself as a consultant in the description he adopted for the purposes of the University of South Australia Report; his previous provision of consultancy services to SP (SA) on the same subject matter and SP (SA)’s payment of those fees; SP (SA)’s payment of Mr Martin’s attendance at a conference in Canberra; Mr Martin’s close engagement with SP (SA) over, particularly, the period 2007, 2008 and up to and including 22 September 2009, as reflected in the exchanges already described; and, the payment by SP (SA) of Mr Martin’s legal fees amounting to $427,004.36 representing a substantial benefit to Mr Martin arising out of the role he played for SP.
370 More fundamentally however, the exchanges between SP (SA) and Mr Martin make it plain that Mr Martin was closely engaged, hand-in-glove, with SP (SA) in agitating the positions asserted in the exchanges earlier described so as to secure the removal of compliance certification for the Plastec fittings to the immediate commercial advantage of the rival’s substitutable product and thus the commercial advantage of SP. That conduct formed a central part of the conduct immediately in issue, namely, the making of the representations in suit. That conduct caused Plastec to seek to counter it and defend the compliance certifications so as to preserve the continuing right to supply compliant fittings into the market.
371 I am satisfied having regard to the observations of Mason CJ, Deane, Dawson and Gaudron JJ in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603 and 604; Houghton v Arms [2006] HCA 59; and Taylor v Crossman (No. 2) [2012] FCAFC 11 per the Court at [44] that Mr Martin’s conduct occurred in the trade or commerce of SP and also in the trade or commerce of Plastec, as it bore the character of activities central to the rivalrous conduct of each corporation, and the success or otherwise of Mr Martin’s conduct directly affected the trading or commercial position of each company in the market for the supply of their respective products.
Findings as to the contentions concerning “opinions”
372 To the extent that any of the representations are asserted to be simply expressions of opinion (as Mr Martin contends – although I find the statements in suit made in the Martin material are representations as to a prevailing factual position) I find that, having regard to the compliance certifications Plastec enjoyed for its Plastec fittings obtained in conformity with the WMCS (AS 2887; and later ATS5200.055); the express terms of ATS5200.055; the absence of any basis for an assertion of collusion between Plastec, SAI Global and/or Standards Australia Limited; the absence of any representative examples of failures in installations due to failures in a joint made by combining Plastec ABS/ASA fittings with PVC-U pipe and fittings (in conformity with ATS5200.055); the absence of any evidence of Plastec fittings leaking in installations or causing problems for a period of “[over] two years” or causing problems to such an extent that the problem is “out of control”; the absence of evidence that the test data upon which the certifications for the Plastec fittings rest, was not properly obtained from an independent testing authority; the absence of any evidence that the Plastec fittings “leak from the outset” and are “defective” and “thousands” of such defective fittings have been supplied; and Mr Martin’s knowledge that the Purdon letter and the AIT Centre Report were not truly independent arms-length objective assessments of the subject matter they purported to address:
1. To the extent that any or all of the statements in suit are properly characterised as expressions of opinion, those opinions were predicated upon a representation to each addressee invited to rely upon the Martin material that the statements in suit contained within it were based upon reasonable grounds and were honestly held by Mr Martin, upon rational grounds, involving an application of relevant expertise to the matters the subject of each individual statement in suit, and a representation that such statements were independent and objective statements of opinion in relation to the matters addressed in the material;
2. The statements however were neither based upon reasonable grounds nor were they genuinely held views upon rational grounds involving an application of relevant expertise at the moment of distribution of the Martin material in September 2009 and nor were they independent and objective opinions in relation to the matters expressed;
3. The making of the statements by Mr Martin was inextricably bound up with the promotion of the products of Storm Plastics and a campaign to secure the removal of the compliance certifications for the Plastec fittings so as to advantage Plastec’s rival, SP.
Further matters raised by Mr Martin
373 In the course of these reasons I have identified many of the contentions made by Mr Martin in the body of the letters and emails written and sent by him as part of the exchanges described earlier. Mr Martin continues to assert in his opening address of mixed submission, opinion and fact, most of those arguments. I have also addressed contentions of Mr Martin in relevant parts of these reasons.
374 However, it is important to remember that these proceedings are concerned with specific questions going to particular representations in issue in these proceedings and the questions include whether the representations in suit made by Mr Martin in September 2009 (and later) by distribution of the Martin material, were correct or not when made at that moment in time. The statements were manifestly not correct and in respect of many of them, Mr Martin had no basis whatsoever for making them, especially, what was said to be the compelling authority of the independent report of the AIT Centre, the allegations of collusion and many other matters already mentioned.
375 Mr Martin seeks to answer the specific case made against him by advancing and relying upon his own opinions about matters of fact. He contends that the statements are merely opinions genuinely held. I have found that the statements are representations as to each particular matter and they were not genuinely held views about the subject matter of each statement in suit because Mr Martin did not have a rational foundation for them and he also knew some of them to be wrong.
376 In answer to these specific claims, Mr Martin says that he has maintained an active interest in the plumbing industry. He says that flexible fittings for use in sanitary drainage pipe systems laid in reactive soils is a matter of particular interest to him. This interest caused Mr Martin, he says, to formulate responses to the publication of ATS5200.055. Mr Martin makes submissions and seeks to give evidence about the structure and functionality of the Plastec swivel and expansion joints to support what he says are the “opinions” he expressed as to the subject matter of each statement.
377 In a real sense, Mr Martin seeks to swear the issue (especially on the topic of leaks) by attempting to give evidence that the structure of the Plastec swivel joint is such that one can have no confidence that it will not leak. This evidence is advanced to answer the criticism that the representations as to leaks in Plastec fittings and failures in the fittings are either true or reasonably held opinions. No evidence of any example of a failure in a joint using a Plastec swivel fitting is adduced by Mr Martin.
378 Notwithstanding that, Mr Martin says that the foundation for his “opinion” lies in this analysis.
379 He says the Plastec swivel joint is divided into two sections, the first consisting of a waterway and the second comprising an outer section or void with the two sections divided by an elastomeric seal, which he says “allegedly” creates a watertight joint. Mr Martin contends that the seal may not render the fitting watertight and it may not be apparent that the fitting leaks (through the seal) because the outer section of the fitting operates as a second chamber into which fluid may flow without it being apparent that the integrity of the fitting is compromised. Mr Martin says the Plastec swivel joint is “too flexible” which compromises its “structural integrity” and its “watertightness”. Mr Martin says that if the elastomeric seal is fulfilling its role in acting as a seal between the waterway and the outer sections of the assembly, the area should be dry at all times, subject to the external environmental circumstances. Mr Martin contends that when both the waterway and the outer section of the assembly are charged with internal hydrostatic pressure, the sealing element of the assembly is “transferred to a plastics-to-plastics contact” and thus the angular sliding gap is transformed into a de facto joint between the angled inner reach of the rim of the outer housing and the external surface of the semi-spherical half-socket component. Mr Martin says any external movement of the outlet connection to the opposing inner semi-spherical half-socket section will break the de facto seal causing the fitting to exhibit leakage from the pressurised assembly.
380 Mr Martin also says that on those occasions when the elastomeric seal has not provided a watertight seal, there is a high risk of “conveyed silts” or “fines” from within the liquid waste bypassing the “purported seals” to be deposited in the outer section or void of the fitting. Mr Martin says that in time, the fitting may fail.
381 There are a number of problems with this evidence and the submissions built upon it.
382 First, no expert has been called by Mr Martin to give evidence of such an expert’s opinion as to these matters or his or her examination of the Plastec fittings, the contended structural functioning of the fitting, the relationship between the so-called waterway section, the elastomeric seals and the so-called outer section or void.
383 Second, no expert has been called by Mr Martin to give evidence of any tests undertaken relevant to Mr Martin’s analysis of the functionality of the Plastec fittings and what is essentially a contention of design defect.
384 Third, Mr Greig gave evidence that the Plastec fittings have passed all the tests required for those fittings by a CAB, to secure certification.
385 Fourth, the fittings passed the CSIRO tests and other tests referred to in the evidence (the Falcon tests).
386 Fifth, Mr Greig says the tests he has seen show that the fittings do not leak notwithstanding Mr Martin’s hypothesis, and the question under ATS5200.055 is whether the assembled fitting as manufactured meets the performance requirements. According to Mr Greig, they do comply having regard to all the test data on the products required so as to satisfy certification by a CAB to ATS5200.055.
387 Sixth, the analysis of functionality postulated by Mr Martin is his own hypothesis and I am not satisfied that Mr Martin, as a retired plumber, has the necessary relevant expertise in a relevant discipline so as to exercise the privilege of giving opinion evidence that the structural design of the Plastec fittings is so flawed having regard to the physics and functionality of the joint that he can say the fittings will fail or are at serious risk of failure. Even if Mr Martin’s practical experience in the plumbing industry and the aggregate of his practical experience gained in the later roles he discharged were to provide him with a basis for forming, and giving evidence of, an opinion about the functionality of the Plastec fittings in the context of an hypothesis about the potential of the fittings to leak, that opinion fails to take into account or properly address the body of data demonstrating compliance of the fittings to the Standard and ATS and cannot be preferred over the body of evidence called by the applicant.
388 Mr Martin’s own evidence to this effect not only swears the issue but is inadmissible.
389 Finally, Mr Martin’s hypothesis is no answer to the making of the sequence of quite specific representations in suit. When Mr Martin distributed the Martin material, the fittings were certified. They complied with ATS5200.055 having been so certified by a CAB in accordance with the WMCS. They are not shown to have leaked. No example of a Plastec fitting having caused a failure in any installation was available to Mr Martin at the time of distribution of the Martin material or at all and no evidence is now adduced of such a failure. All the independent tests demonstrated that the Plastec fittings met the performance requirements of the PCA and it was lawful for Plastec to supply the Plastec fittings.
390 Mr Martin also contends that QTL was not independent of Plastec and he contends that Mr Perham’s role shows that to be so. Therefore, he says Plastec and QTL were in a conflict of interest when the tests, leading to the certification reliant upon those tests, were undertaken. Mr Perham does indeed have a role (as described in these reasons) at QTL. He did not however have any role to play in conducting or approving the QTL tests described in these reasons. Notwithstanding Mr Martin’s suspicions, there was no basis for the contention that QTL and Plastec colluded or improperly contrived to produce test results that were not based upon independent NATA protocols or not genuine.
391 This contention of Mr Martin is odd having regard to the role Mr Martin played in directing the modified tests to be done at the AIT Centre and in writing the report of that Centre.
392 Mr Martin also places considerable emphasis in his defence of the claims on two matters. First, Plastec at one point published a brochure that incorrectly referred to certification of a Plastec fitting to AS 1260 instead of AS 2887. Secondly, Plastec prematurely allowed some Plastec fittings “certified to ATS5200.055” to be released to the market out of the separate storage area for these fittings, before the publication of ATS5200.055. The first matter was an error on Plastec’s part. The second was also an error in the packing and despatch protocols within the production, storage and despatch facilities operated by Plastec. Neither matter has anything to say about an answer to Plastec’s complaints about the specific sequence of representations made by Mr Martin in September 2009 by reason of Mr Martin’s election to make the representations he made by distributing the Martin material.
393 As to the objections to evidence made by Plastec to aspects of Mr Martin’s affidavits, I take this course.
394 As to those challenges to paragraphs to Mr Martin’s affidavits on the ground of relevance, I dismiss those objections.
395 As to the challenges to those parts of Mr Martin’s affidavits on the grounds that the evidence is opinion evidence going to the structural functionality of the Plastec fittings as a matter of physics and the likely performance of the fittings under the postulated circumstances; evidence going to the molecular bonding properties of differential plastics materials; evidence going to thermal expansion rates of particular plastics materials and the dynamics of thermal expansion; and evidence going to the chemical properties of particular glues, I uphold the objections to that opinion evidence reflected in Mr Martin’s affidavits.
The implied immunity or constitutional guarantee
396 Mr Martin contends, in effect (and I will formulate the contention in a structured way as Mr Martin is self-represented), that the prohibition contained in s 52(1) of the Trade Practices Act upon engaging in conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive consumers, can have no operation as a valid law of the Commonwealth with respect to matters of regulatory reform, as the conduct asserted against him (and as found) engages the implied immunity or freedom as formulated in Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104 at 208 and the unanimous and joint judgment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 552. See also the two 1992 decisions of Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.
397 Where a putative burden on governmental and political communication has its source in a statute, the issue presented for the Court is one of limitation upon legislative power: Wotton v State of Queensland [2012] HCA 2; (2012) 285 ALR 1 per French CJ, Gummow, Hayne, Crennan and Bell JJ (proposition (i)) at [22] and [23]; per Heydon J at [54] and Kiefel J at [76] to [78]. Mr Martin’s contention as to the limitation upon power so far as it relates to s 52(1), raises the application of the two well-settled Lange questions restated by the whole High Court in Hogan v Hinch (2011) 243 CLR 506 at [94] to [97]. Those questions are now formulated in this way. First, “Does the [impugned] law effectively burden freedom of communication about governmental or political matter either in its terms, operation or effect?”; If so, “Is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 [of the Constitution]?”: Lange at 567; Hogan v Hinch at 542 [47] and 556 [97]; Wotton v State of Queensland at [25], [40] and [41].
398 In considering the Lange questions, a further question arises of what is the relevant field of communication respecting governmental or political matters relied upon?: Wotton at [26]. Mr Martin would contend that the relevant field is communication concerning the legislative and regulatory environment applying the lawful use of plumbing products in particular installations throughout Australia. Does s 52(1) burden freedom of communication about those matters (assuming for the purposes of the argument that the field relied upon engages governmental or political matters) either in terms, operation or effect?
399 The answer is that it does not.
400 The section prohibits conduct (no doubt consisting of communications) that is likely to mislead or deceive consumers (in the sense that term is understood for the purposes of s 52) or conduct which is misleading or deceptive of consumers concerning the making of representations. The constitutional guarantee of freedom from statutory burdens on communication about governmental (regulatory) or political matters, is not a guarantee of a freedom to distribute in trade or commerce material containing misrepresentations as to the subject matter of each statement in issue: see Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc. (No. 2) (1993) 41 FCR 89.
401 The legislative power of the Commonwealth is not limited by the constitutional guarantee so as to render a law that prohibits a person (by force of s 6(3) of the Trade Practices Act) from engaging in conduct of communicating misleading or deceptive statements to consumers or statements likely to mislead or deceive consumers (where the subject matter of the communication concerns the regulatory matters Mr Martin relies upon), a law in excess of the legislative power of the Commonwealth.
Orders
402 For all of these reasons, it follows that judgment must be entered for the applicant with costs. I will direct the applicant to submit minutes of order to the Court within 10 days for further consideration in the making of final orders. The principal relief sought by the applicant in the proceedings is a declaration and injunctions. The Court will make a declaration as to the relevant matters and grant an injunction restraining Mr Martin from making further representations in terms of the representations the subject of the suit.
| I certify that the preceding four hundred and two (402) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
Associate:
