Instyle Contract Textiles Pty Limited v Good Environmental Choice Services Pty Ltd (No 2) [2010] FCA 38 (5 February 2010)

Last Updated: 5 February 2010

FEDERAL COURT OF AUSTRALIA

Instyle Contract Textiles Pty Limited v Good Environmental Choice Services Pty Ltd (No 2)[2010] FCA 38

Citation:		Instyle Contract Textiles Pty Limited v Good Environmental Choice Services Pty Ltd (No 2) [2010] FCA 38
Parties:		INSTYLE CONTRACT TEXTILES PTY LIMITED (ACN 003 212 057) v GOOD ENVIRONMENTAL CHOICE SERVICES PTY LTD (ACN 118 767 043), PETAR JOHNSON and GOOD ENVIRONMENTAL CHOICE - AUSTRALIA LIMITED (ACN 118 766 153)
File number:		NSD 611 of 2009
Judge:		YATES J
Date of judgment:		5 February 2010
Catchwords:		TRADE PRACTICES – misleading or deceptive conduct – application for interim and other relief PRACTICE AND PROCEDURE – interim injunction – whether proof of irreparable injury is necessary in the circumstances PRACTICE AND PROCEDURE – injunction sought at interlocutory stage – order mandatory in character and final in form – whether different standard applies PRACTICE AND PROCEDURE – leave to file amended application and second further amended statement of claim PRACTICE AND PROCEDURE – separate question - whether premature to order a separate question to be determined PRACTICE AND PROCEDURE - setting aside part of a subpoena – whether documents sought are adjectivally relevant
Legislation:		Trade Practices Act 1974 (Cth), ss 52, 53, 80 Fair Trading Act 1987 (NSW), ss 42, 43, 44, 65
Cases cited:		Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 McCarty v The Council of the Municipality of North Sydney (1918) 18 SR(NSW) 210 R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651 Aktiebolaget Hässle v Biochemie Australia Pty Ltd (2003) 57 IPR 1 Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 Merck & Co Inc v GenRx Pty Ltd [2006] FCA 1407; (2006) 70 IPR 286 CSL Ltd v GlaxoSmithKline Australia Pty Ltd (2006) 70 IPR 128 Oxygen 8 Communications Australia Pty Ltd v Telstra Corporation Ltd [2009] FCA 426 AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 Marley New Zealand Limited v Icon Plastics Pty Ltd [2007] FCA 851 Medrad Inc v Alpine Medical Pty Ltd (2009) 82 IPR 101 Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 Ricegrowers’ Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR ¶40-778 ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 Shepherd Homes Ltd v Sandham [1971] Ch 340 Storm Financial Limited v Commonwealth Bank of Australia [2008] FCA 1991 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 722 Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119 Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147
Dates of hearing:	9, 10 and 18 December 2009
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	180
Counsel for the Applicant:	Mr P T Taylor SC and Mr J R Clarke
Solicitor for the Applicant:	Fraser Clancy Lawyers
Counsel for the Respondents:	Dr A Bell SC and Ms P A Horvath
Solicitor for the First and Second Respondents:	Kennedys
Solicitor for the Third Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 611 of 2009

BETWEEN:	INSTYLE CONTRACT TEXTILES PTY LIMITED (ACN 003 212 057) Applicant
AND:	GOOD ENVIRONMENTAL CHOICE SERVICES PTY LTD (ACN 118 767 043) First Respondent PETAR JOHNSON Second Respondent GOOD ENVIRONMENTAL CHOICE - AUSTRALIA LIMITED (ACN 118 766 153) Third Respondent

JUDGE:	YATES J
DATE OF ORDER:	5 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. By no later than 4.00 pm on 12 February 2010, the parties provide to my Associate a draft of the orders and directions that will formalise the matters identified in paragraph 179 of the reasons for judgment delivered on 5 February 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 611 of 2009

BETWEEN:	INSTYLE CONTRACT TEXTILES PTY LIMITED (ACN 003 212 057) Applicant
AND:	GOOD ENVIRONMENTAL CHOICE SERVICES PTY LTD (ACN 118 767 043) First Respondent PETAR JOHNSON Second Respondent GOOD ENVIRONMENTAL CHOICE - AUSTRALIA LIMITED (ACN 118 766 153) Third Respondent

JUDGE:	YATES J
DATE:	5 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. By notice of motion dated 30 October 2009 and filed on 2 November 2009 the applicant in the proceeding, Instyle Contract Textiles Pty Limited (Instyle), seeks various forms of relief.
2. First, it seeks leave to file an amended application and a second further amended statement of claim (the 2FASC).
3. Secondly, it seeks interlocutory injunctions restraining the first respondent, Good Environmental Choice Services Pty Ltd (GECS), the second respondent Petar Johnson, and the third respondent, Good Environmental Choice – Australia Limited (GECA), from making or publishing certain statements.
4. Thirdly, its seeks a mandatory injunction requiring GECS to publish a statement in the form of a retraction of certain statements said to have been made in documents identified as Market Advisories issued on 25 September 2009 and 28 September 2009 and to forward a copy of certain of the orders it seeks (on the assumption those orders are made) to recipients of the emails referred to in paragraph 50 of the 2FASC.
5. Fourthly, it seeks orders (in alternative form) providing for the determination of various claims or aspects of various claims pleaded in the 2FASC, as a separate question under O 29 r 1.
6. Finally, it seeks orders that further discovery relating to issues raised by certain nominated paragraphs in the 2FASC be “postponed”.
7. The hearing of the motion (which, for convenience, I will call the “principal motion”) proceeded as if leave to file the amended application and 2FASC had been granted. Although leave to file the 2FASC was opposed, the course that was adopted at the hearing was, in my view, both convenient and appropriate, given that the respondents’ opposition to the filing of the 2FASC was limited to an aspect of paragraph 50 of the proposed pleading. I indicate now that I will grant leave to Instyle to file the amended application and the 2FASC, for the reasons given below.
8. Although GECS and Mr Johnson, on the one hand, and GECA, on the other, appear and defend this proceeding by different solicitors, all respondents were represented, as a matter of convenience, by the same counsel on the hearing of the principal motion and on the hearing of the other notices of motion that were before the Court, to which I will now make brief reference.
9. There were three other notices of motion. The first was a notice of motion filed on 20 November 2009 by Instyle seeking (amongst other things) to set aside paragraph 3 of a subpoena issued on 9 November 2009 at the request of GECA and addressed to the Proper Officer of Contemporary Leathers Pty Ltd. After receiving evidence in respect of, and hearing argument on, this motion, I set aside paragraph 3 of the subpoena. I said that I would give reasons, and determine the question of costs, later. My reasons and my decision on the question of costs are given below.
10. The second notice of motion was filed on 8 December 2009 by GECA seeking (amongst other things) to set aside various paragraphs of a notice to produce dated 1 December 2009 that had been served on it by Instyle. After receiving evidence in respect of, and hearing argument on, this motion, I set aside various paragraphs of the notice to produce. I gave brief reasons at the time for so doing, but I did not determine the question of costs. My decision on the question of costs is given below.
11. The third notice of motion was filed as an amended notice of motion on 9 December 2009 by GECS and Mr Johnson seeking (amongst other things) to set aside various paragraphs of a notice to produce dated 1 December 2009 that had been served on them by Instyle. This notice to produce contained a number of paragraphs in the same terms as the notice to produce that had been served on GECA and which were similarly challenged by GECS and Mr Johnson. A challenge to some additional paragraphs was also made by GECS and Mr Johnson. Once again, after receiving evidence in respect of, and hearing argument on, this motion, I set aside various paragraphs of the notice to produce. Once again, I gave brief reasons at the time for so doing, but I did not determine the question of costs. My decision on the question of costs is given below.
12. Before dealing with the principal motion, it is necessary to say something about the background to the proceeding and the allegations now made in the 2FASC.

BACKGROUND

13. The following facts were not in dispute.

The activities of the parties

14. Instyle is a supplier of furnishing textiles to government and business. It is the supplier of the LIFE Textiles range of fabrics. This range of fabrics is said to be primarily produced from wool that is sourced from sheep raised on holistically-managed farms which do not need to be mulesed (mulesing is the practice of cutting the skin from the sheep’s hindquarters to prevent flystrike). Instyle has won or been nominated for various environmental awards for the way in which it conducts its business and for its LIFE Textiles range of fabrics. Relevantly, for present purposes, those fabrics are suitable for office furnishings, including chairs.
15. GECA is a public company limited by guarantee that is taken to be registered in the Australian Capital Territory. It was registered in March 2006. GECS is a company in which the shares are held privately. It was registered at about the same time as GECA and trades under the name Environmental Assurance. Mr Johnson organised the registration of both companies. He is currently the managing director of GECS. He was a director of GECA, but resigned from that office on 10 September 2009. GECA and GECS are involved in an activity that is referred to in the evidence as “ecolabelling”. This involves the assessment and certification of products against environmental and social performance criteria specified in relevant standards.
16. Australian Environmental Labelling Association Inc (AELA) started what is called the Good Environmental Choice Program. It drafted standards for ecolabelling and also audited products to determine whether they complied with those standards. To further this program AELA registered a trade mark that is referred to in the evidence as the Good Environmental Choice Label.
17. In 2006 AELA transferred most of its assets to GECA. GECA now sets environmental standards relevant to the ecolabelling of various products, including, relevantly, office furniture. A person wishing to advertise a product using the Good Environmental Choice Label can apply to GECA for a licence to use the registered trade mark. GECA refers applications to GECS to audit whether or not the product complies with the relevant GECA standard. GECS is the exclusive auditor for the Good Environmental Choice Program pursuant to various agreements into which it has entered with GECA. GECS is responsible for advising GECA whether a particular product complies with a nominated GECA standard and for drafting documents called Environmental Product Declarations (EPDs).
18. The evidence indicates that, in respect of the Good Environmental Choice Program, the usual process of certification is as follows. The person seeking certification of a product under a relevant GECA standard completes a form of application. GECS contacts the applicant for certification to discuss in a preliminary way whether the product may pass the requirements of the relevant GECA standard. The purpose of the discussion is to try to exclude products that will be clearly unable to pass the relevant standard before the applicant for certification has incurred any significant cost. As part of this process GECS obtains general information and documentation with respect to the product, which the applicant for certification may hold. GECS then provides a preliminary assessment on whether the product is likely to satisfy the relevant GECA standard based upon this information and documentation. If the preliminary assessment is positive, GECS provides the applicant for certification with a quote for the cost of auditing the product’s compliance with the relevant GECA standard. The audit process is undertaken by employees of GECS as well as independent contractors to it. If the product meets the relevant GECA standard, GECS drafts an EPD for that product and GECA issues the successful applicant for certification with a licence that states the terms upon which that person is permitted to use the Good Environmental Choice Label in relation to the certified product.
19. The two standards that are relevant to the present proceeding are Standard No: GECA 28-2006 and Standard No: GECA 19-2007.

Standard No: GECA 28-2006

20. Standard No: GECA 28-2006 was issued on 29 November 2006 for “Furniture and Fittings” (the GECA Furniture Standard). It is expressed to be valid for three years. The standard was apparently last amended on 4 September 2007. It remains in force despite the stated limited period of validity. It specifies the environmental performance requirements for indoor furniture and fittings products for the Australian Ecolabel Program. I have assumed that the Australian Ecolabel Program is the same as the Good Environmental Choice Program.
21. The following statement is included under a heading “Use of This Standard”:

This voluntary environmental labelling standard may be used by competent environmental assessors to establish product compliance to the Australian Ecolabel Program. Products that are certified with the mark of conformity, the “Good Environmental Choice Label” have been independently tested and demonstrate compliance to the environmental and social performance criteria detailed in this standard. The overall goal of environmental labels and declarations is the communication of verifiable and accurate information, which is not misleading, on environmental aspects of products and services. This encourages the demand for, and supply of, those products and services that cause less stress on the environment, thereby stimulating the potential for market-driven continuous environmental improvement.

22. The GECA Furniture Standard applies to various categories of ready-to-use home and office furniture products. Category 2.1 is in respect of “Office Chairs” (being commercial indoor contract chairs and seats including computer chairs, stools, school chairs, footrests and variations thereof). Category 2.6 is in respect of “White Furniture” (being furniture pending finishing (eg. upholstering) to allow for different client requirements). This presumably provides for the certification of unfinished furniture which is thereafter supplied to a customer to take steps to “finish” the furniture by, for example, upholstering it in fabric. In these reasons I will continue to refer to such unfinished furniture as white furniture.
23. Section 3 of the GECA Furniture Standard sets out certain “Environmental Performance Criteria”, being “Fitness for Purpose” (section 3.1), “Material Requirements” (section 3.2), “Hazardous Materials” (section 3.3) and “Post Consumption Recycling and Labelling” (section 3.4).
24. Section 3.2 in respect of “Material Requirements” states:

The requirements in this section apply to each type of material contained in the finished product that contributes 10% or more to the weight of the product.

25. Section 3.2.3 deals with “Fabrics”. It states:

All fabric comprising more than 10% of the total weight of the product must be certified by the Good Environmental Choice Label, the EU Flower label or the Nordic Swan label or satisfy the requirements of GECA Standard No. 19: Textiles.

26. It is to be noted that this section, on its face, appears to draw a distinction between fabrics that are “certified” and fabrics that “satisfy the requirements” of a standard.
27. Instyle has submitted that the reference in section 3.2.3 to certification by the Good Environmental Choice Label means certification in accordance with GECA Standard No. 19: Textiles as identified in the section. Instyle pleads that its fabrics have not been certified by the Good Environmental Choice Label, the EU Flower Label or the Nordic Swan Label. It also pleads that its fabrics have not been assessed for compliance with GECA Standard No. 19: Textiles (paragraph 19 2FASC).
28. Section 3.3 in respect of “Hazardous Materials” states:

The requirements in this section apply to all materials in the finished product regardless of weight.

Given the reference in this section to “the finished product”, it is not clear how the requirements in this section relate to white furniture (being furniture that is not a product that is “finished”) or how they apply to products certified as white furniture that are subsequently finished. However, these are not matters that I need to decide at the present time.

29. Section 4 of the GECA Furniture Standard requires the applicant for certification to comply with various “Environmental Regulations” and section 5 requires compliance with various “Labour, Anti-Discrimination and Safety Regulations”. These sections do not deal directly with the product to be certified but rather with the conduct and business practices of the applicant for certification.
30. Section 6 concerns “Compliance Testing”. Section 6.1 deals specifically with “Audit Methodology”. Section 6.1 played a significant role in the respondents’ submissions. It states:

Conformance with this standard shall be demonstrated by undertaking an assessment under the above criteria by an approved assessor, following the certification and verification procedures detailed in the Good Environmental Choice Australia Ltd Documented Quality Management System, which generally follows the environmental auditing requirements of ISO 14 011 and 14 012.

31. It is enough for present purposes to note that, according to section 6.1, “conformance” with the GECA Furniture Standard is not achieved by self-assessment. Furthermore, Instyle does not claim to be an “approved assessor” for the purposes of Section 6.1 of the GECA Furniture Standard.

Standard No: GECA 19-2007

32. Standard No: GECA 19-2007 was issued on 20 June 2007 for “Textiles” (the GECA Textiles Standard). It is expressed to be valid for three years. It specifies the environmental performance requirements for a range of textile products for the Australian Ecolabel Program. It is not necessary to discuss this standard in any detail for the purposes of the principal motion. It should be noted, however, that section 6.1 of the standard is in the same terms as section 6.1 of the GECA Furniture Standard, save that it refers to a different ISO (ISO 19 011).

The Green Star Rating System

33. The Green Building Council of Australia Ltd (GBCA) promotes an environmental performance rating system that is known as the Green Star Rating System. For this purpose it publishes Green Star Rating Tools. The Green Star – Office Interior Rating Tool is designed for building owners, tenants and interior designers to assess the environmental impact of an interior fit-out. GBCA publishes a “calculator” that enables rating points to be calculated with respect to office furniture and furnishings.
34. The GBCA does not test, review or certify products or materials. Instead it relies on third party certification bodies. At times relevant to this proceeding, one of those certification bodies was GECA.

THE ALLEGATIONS PLEADED IN THE 2FASC

35. Paragraphs 1 to 19 of the 2FASC plead a number of prefatory allegations concerning (amongst other things) the Green Star Rating System (paragraphs 3 to 8); the identity and activities of the respondents (paragraphs 9 to 14); the GECA Furniture Standard and the GECA Textiles Standard (paragraphs 15 to 18) and Instyle’s fabrics (paragraph 19).
36. Paragraphs 17A, 17B and 18 of the 2FASC are of particular importance for the principal motion. They plead as follows:

17A. Upholstered office chairs, workstations and partitions can be certified as being compliant with the GECA Furniture Standard respectively under –

(a) Section 2.1 (for upholstered chairs), section 2.2 (for upholstered workstations), and section 2.7 (for upholstered partitions) (hereafter “GECA Certified Upholstered Furniture”); or

(b) Section 2.6 (hereafter “GECA Certified White Furniture”) but only on the basis that the textile component is not included in the certification.

17B Under the GECA Furniture Standard –

(a) Any textile can be used to upholster GECA Certified White Furniture; and

(b) Any textile –

(i) Conforming with the requirements in section 3.3 of the GECA Furniture Standard, and

(ii) Contributing less than 10% by weight to an item of GECA Certified Furniture,

can be used to upholster any item of GECA Certified Upholstered Furniture; and

(c) Any textile

(i) Conforming with the requirements in sections [sic] 3.3 of the GECA Furniture Standard, and

(ii) Which satisfies the requirements of the GECA Textiles Standard,

can be used to upholster an item of GECA Certified Upholstered Furniture even if the textile component of that item contributes more than 10% by weight.

... ... ...

18. GECA Certified Upholstered Furniture will achieve the same product score under the Green Star Rating Tool
    

(a) as will GECA Certified White Furniture which is upholstered provided that any textile/s and any other finishing added to the item of GECA Certified White Furniture contribute in aggregate 10% or less by weight to the finished item of furniture;

(b) irrespective of whether or not the textile used to upholster that item of furniture has been certified as being compliant with the GECA Textiles Standard provided that if (and only if) the textile/s used contribute 10% or more by weight to the finished item of furniture then the textile/s must satisfy the requirements of the GECA Textiles Standard.

37. When making submissions on the appropriateness of granting the relief sought alternatively in paragraph 3 of the principal motion, the respondents challenged Instyle’s interpretation of the GECA Furniture Standard as pleaded in paragraph 17B of the 2FASC.
38. Paragraphs 20 to 60 of the 2FASC plead three main claims.
39. The first claim (paragraphs 20 to 37) has been described by the parties as “the Corporate Express claim”. By way of summary, Instyle alleges that:

(a) Corporate Express Australia Limited (Corporate Express), a seller of upholstered task and visitor chairs, engaged GECS in or about early February 2009 to assess whether Corporate Express EXP Green branded task and visitor chairs (the EXP chairs) complied with the GECA Furniture Standard as white furniture. The fabric component of the EXP chair contributes less than 10% to the weight of the chairs as a finished product (paragraphs 20, 22 and 24).

(b) The respondents advised Corporate Express that, in order for the EXP chairs to be certified under the GECA Furniture Standard as white furniture, Corporate Express would have to undertake to only upholster the chairs using textiles that had been certified as compliant with the GECA Textiles Standard. This advice was given by Mr Johnson to Richard Haigh, the National Merchandising Manager of Corporate Express, on or about 2 April 2009 (paragraph 26(a)).

(c) The respondents also advised Corporate Express that, notwithstanding that the fabric component contributed less than 10% of the weight of the EXP chairs –

(i) the EXP chairs could not be certified as upholstered furniture under the GECA Furniture Standard unless the fabric used in upholstering the chairs was a fabric that had either been certified as complying with the GECA Textiles Standard or had been assessed and verified as complying with the GECA Furniture Standard; and

(ii) unless the fabric to be used in upholstering the EXP chairs was so certified or assessed and verified, the EXP chairs would not earn the full Green Star Rating credit points available for chairs (paragraph 26(b)).

(d) The advice in (c)(i) was given by Mr Johnson to Mr Haigh on or about 2 April 2009 and in an email sent by Mr Johnson to Mr Haigh on 3 April 2009. The advice in (c)(ii) was given by the email sent on 3 April 2009 (particulars to paragraph 26(b)).

(e) The fabric component of the EXP chairs did not need to comply with the GECA Textiles Standard or be certified by the Good Environmental Choice Label, the EU Flower Label or the Nordic Swan Label in order for the EXP chairs to be certified as upholstered furniture under the GECA Furniture Standard (paragraph 25(a)).

(f) The fabric component of the EXP chairs did not need to comply with section 3.3 of the GECA Furniture Standard, or the GECA Textiles Standard, or be certified by the Good Environmental Choice Label, the EU Flower Label or the Nordic Swan Label in order for the EXP chairs to be certified as white furniture under the GECA Furniture Standard (paragraph 25(b)).

40. Instyle alleges that the advice that was given was misleading or deceptive or likely to mislead or deceive, with the consequence that the respondents have contravened s 52 of the Trade Practices Act 1974 (Cth) (TPA) and s 42 of the Fair Trading Act 1987 (NSW) (FTA) (paragraphs 27 to 29). It also alleges that the advice constituted a false and misleading representation concerning the need for goods or services and the existence, exclusion or effect of a condition, warranty or guarantee, right or remedy, with the consequence that the respondents have contravened s 53 of the TPA and s 44 of the FTA (paragraphs 30 to 32). It also alleges that the giving of the advice constituted unconscionable conduct, with the consequence that the respondents have contravened s 43 of the FTA (paragraphs 33 to 35).
41. Instyle alleges that Corporate Express relied on the advice and advised Instyle that its fabrics could not be included as a component of the EXP chairs until the fabrics had achieved GECA certification and declined to advertise Instyle’s products as a component of the EXP chairs (paragraph 37). Instyle alleges that it has suffered or is likely to suffer substantial loss and damage as a result (paragraph 59).
42. The second claim can be described as “the EPD claim” (paragraphs 38 to 49). By way of summary, Instyle alleges that:

(a) GECS and GECA have issued EPDs to suppliers whose furniture has been certified under the GECA Furniture Standard as either white furniture or upholstered furniture. These suppliers include 18 suppliers described as “the Certified Suppliers” (paragraph 38).

(b) The EPDs issued to the Certified Suppliers contained the respective statements set out in column 5 of a table in Annexure 1 to the 2FASC (collectively referred to as “the EPD Statements”) (paragraph 39).

(c) The EPD Statements are to the effect that:

(i) in order for items of upholstered furniture to be fully certified with the GECA Furniture Standard the fabric component must be certified by the Good Environmental Choice Label, the EU Flower Label or the Nordic Swan Label, contrary to the provisions of the GECA Furniture Standard; and

(ii) in order for the certified furniture to accrue the maximum available credit points under the Green Star Rating Tool, the fabric component of the furniture must be a “GECA or related certified fabric” (paragraph 43);

(d) GECS and GECA have each published the EPD Statements on their websites (paragraphs 40 and 41).

43. Instyle alleges that the EPD statements were and are misleading or deceptive or likely to mislead or deceive, with the consequence that GECS and GECA have contravened s 52 of the TPA and s 42 of the FTA (paragraphs 43 and 44). It also alleges that the EPD Statements were and are false and misleading representations concerning the need for goods or services and the existence, exclusion or effect of any condition, warranty or guarantee, right or remedy, with the consequence that GECA and GECS have contravened s 53 of the TPA and s 44 of the FTA (paragraphs 46 and 47).
44. Instyle alleges that, because of the EPD Statements, the Certified Suppliers will not use, or are less likely to use, or will less commonly use, Instyle’s fabrics in GECA certified products and that, as a result, it has suffered or is likely to suffer substantial loss and damage (paragraphs 49 and 59).
45. The third claim can be described as “the Market Advisories claim” (paragraphs 50 to 58). By way of summary, Instyle alleges that:

(a) On or about 25 September 2009 and 28 September 2009 an email called a Market Advisory and an attachment to the email also identified as a Market Advisory, were sent to undisclosed recipients on behalf of the respondents by Chris Marshall or Lisa Patten or both of them (paragraph 50). This allegation of agency was the focus of the respondents’ opposition to the filing of the amended application and the 2FASC. I shall refer to these documents as “the Market Advisories”.

(b) The attachment to the email (described in the 2FASC as “the Short Form Market Advisory”) represented that only textiles that have been independently tested and certified as being compliant with the GECA standards can be included in GECA certified furniture. Instyle alleges that this representation is false and thus misleading or deceptive or likely to mislead or deceive (paragraph 52).

(c) The email (described in the 2FASC as “the Long Form Market Advisory”) represented that GECS had found that Instyle had intentionally misled manufacturers, or alternatively misled manufacturers, or alternatively extensively exaggerated and misinformed manufacturers, about the environmental performance of Instyle’s products (paragraph 53(a)). Instyle alleges that each (alternative) representation is false and thus misleading or deceptive or likely to mislead or deceive. It alleges that, despite seeking particulars from GECS on 28 September 2009 on what GECS had allegedly found, no such particulars have been forthcoming (paragraphs 53A(a) to (c)).

(d) The Long Form Market Advisory also represented that:

(i) Instyle had made claims to GECS about the environmental performance of its textiles.

(ii) GECS had made one or more requests to Instyle for Instyle to supply GECS with suitable independent technical evidence to substantiate such claims.

(iii) In response to that request, Instyle supplied material to GECS that was inadequate and failed to, or has been unable to, supply all of the suitable independent technical evidence which GECS has requested from Instyle (paragraph 53(b)).

(e) Instyle alleges that each of these representations is false and thus misleading or deceptive or likely to mislead or deceive. It alleges that it has never made a claim to GECS about the environmental performance of its textiles and that GECS has never made a request to Instyle for it to supply suitable independent technical evidence. It also alleges that GECS has never advised it that any information that Instyle has supplied to a manufacturer about Instyle’s textiles has been inadequate (paragraphs 53A(d) to (f)).

(f) The Long Form Market Advisory also represented that only textiles that have been independently tested and found to be compliant with the “GECA Standards” can be included in GECA “Certified Furniture” (paragraph 53(c)). Instyle alleges that this representation is false and thus misleading or deceptive or likely to mislead or deceive (paragraph 53A(g)).

46. Instyle alleges that, by sending the Long Form Market Advisory and the Short Form Market Advisory, and by making the pleaded representations, the respondents have contravened s 52 of the TPA and s 42 of the FTA. It also alleges that the Long Form Market Advisory and the Short Form Market Advisory contained false or misleading representations concerning the need for goods or services and the existence, exclusion or effect of a condition, warranty or guarantee, right or remedy, with the consequence that the respondents have contravened s 53 of the TPA and s 44 of the FTA (paragraphs 55 to 57).
47. Instyle alleges that recipients of the Long Form Market Advisory and the Short Form Market Advisory will not use or specify, or are less likely to use or specify, or will less commonly use or specify, Instyle’s textiles in “GECA Certified Furniture” and that, as a result, it has suffered or is likely to suffer substantial loss and damage (paragraphs 58 and 59).

LEAVE TO AMEND THE PLEADINGS

48. The respondents’ opposition to the filing of the amended application and the 2FASC was directed to (and limited to) what was said to be the failure of paragraph 50 of the 2FASC to plead material facts relating to the relationship of agency between Mr Marshall and Ms Patten, on the one hand, and the respondents, as principals, on the other hand. The respondents submitted that this failure was not remedied by the particulars subsequently provided by Instyle.
49. I will not detail the correspondence that has passed between the parties on this issue. It is sufficient for me to note that, for its part, Instyle relies on (amongst other things) the content of the Market Advisories as giving rise to an inference of agency, the contractual relationship that existed between GECA and GECS (of which there is evidence) and the allegations in paragraph 14 of the 2FASC concerning Mr Johnson’s directorships in GECA and GECS, his economic interest in GECS and his alleged position of control over or significant influence in the activities of GECA and GECS.
50. As to the form of the Market Advisories, I note that they are at least capable of being read as expressing the concerns of each of the respondents with respect to the conduct by Instyle to which it is said the Market Advisories relate. Each Market Advisory refers to Mr Marshall as the Business Manager of GECS and the person to whom contact should be made in relation to the matters dealt with by the Market Advisory. The evidence suggests that Ms Patten sent the emails containing the Market Advisories to the undisclosed recipients. There is also evidence that Mr Marshall and Ms Patten are employees of GECS.
51. The issue of immediate concern is whether the pleading of paragraph 50 of the 2FASC is sufficient to inform the respondents of the case made against them. In my view it is. It is plain that Instyle alleges that, in sending the emails containing the Market Advisories, Mr Marshall or Ms Patten or both of them were acting as the agent(s) of the respondents for that purpose. The particulars that have been provided point to the matters on which Instyle relies and which it says will make good the allegations of agency. Whether, at the final hearing, those matters taken cumulatively will, on the evidence then given, translate into facts or give rise to inferences which prove the agency that is alleged, is another matter. It is sufficient for me to form the view, which I do, that those matters are at least capable of making good the allegations in this regard.
52. The parties were also at issue on the question of costs relating to the filing of the amended application and the 2FASC. The respondents submitted that there was no reason why Instyle ought to be relieved from the usual order that, as a condition of granting leave to amend, Instyle should pay the respondents’ costs thrown away by reason of the amendments. Instyle, on the other hand, submitted that the “vast bulk” of the amendments it has made arise out of conduct of the respondents occurring subsequently to the last-filed version of the statement of claim, namely the issuing of the Market Advisories. It submitted that those claims could have been made in a separate proceeding and the fact that they are sought to be made in this proceeding should not result in costs being visited upon it. Instyle submitted that the other amendments it has made are minor and simply add clarity to the existing allegations.
53. In my view Instyle’s submissions do not pay sufficient regard to the scope and extent of the amendments it has made to its existing pleadings. In my view the amendments it has made result in a substantial reformulation of its allegations, even leaving aside the amendments directed to the Market Advisories. It has also chosen, no doubt for good reason, to include in this proceeding its claims relating to the Market Advisories. I do not criticise it for having taken this course. I do not think, however, that this circumstance relieves it from what might be regarded as the usual cost consequences that attend the amendment of a statement of claim after a defence to it has been filed.
54. In all the circumstances it seems to me that Instyle should pay the respondents’ costs thrown away by reason of the amendments that have been made.

THE QUESTION OF INJUNCTIVE RELIEF

55. The proceeding was commenced by Instyle on 25 June 2009 by filing an application substantially in the form numbered 5 in Schedule 1 to the Federal Court Rules, as it was required to do: O 4 r 1. No claim for interlocutory relief was made. Indeed, the amended application makes no claim for interlocutory relief. However, such relief is claimed in the principal motion.
56. In Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 Mason ACJ said:

The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

57. It is to be borne in mind that, in this discourse, “irreparable injury” does not mean injury that cannot be repaired but injury for which damages would not be adequate compensation: McCarty v The Council of the Municipality of North Sydney (1918) 18 SR(NSW) 210 at 215; R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518 at 550.
58. In Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] Gleeson CJ and Crennan J referred to the three requirements in Castlemaine Tooheys as “the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed”.
59. Some formulations of the relevant principles make no specific reference to the requirement for “irreparable injury”: see, for example, Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622-623; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651 at 653. Indeed, in O’Neill Gummow and Hayne JJ at [65] said that the relevant principles in Australia are those explained in Beecham at 622-623, where it was said that, on such occasions, the court addresses itself to two main enquiries, namely whether the applicant for relief has made out a prima facie case (in the sense explained in O’Neill at [65]) and whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the inconvenience or injury which the respondent would suffer if an injunction were granted.
60. There are a number of decisions of this Court where the formulation in Castlemaine Tooheys has been applied: see, for example, Aktiebolaget Hässle v Biochemie Australia Pty Ltd (2003) 57 IPR 1 at [29]; Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 at [17]; Pharmacia Italia SpA v Interpharma Pty Ltd (2005) 67 IPR 397 at [9]-[10]; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [13]; Merck & Co Inc v GenRx Pty Ltd [2006] FCA 1407; (2006) 70 IPR 286 at [16]; CSL Ltd v GlaxoSmithKline Australia Pty Ltd (2006) 70 IPR 128 at [58]-[59]; Oxygen 8 Communications Australia Pty Ltd v Telstra Corporation Ltd [2009] FCA 426 at [20].
61. In AB Hassle v Pharmacia (Australia) Pty Ltd (1995) 33 IPR 63 at 76-77 Ashley J remarked on a tendency to treat “irreparable harm” as a consideration going to the balance of convenience, rather than as a distinct and antecedent consideration. This approach has been reflected in some decisions of this Court: see, for example, Marley New Zealand Limited v Icon Plastics Pty Ltd [2007] FCA 851 at [3]; Medrad Inc v Alpine Medical Pty Ltd (2009) 82 IPR 101 at [38].
62. Although it is often said in the cases that the principles to be applied in relation to the granting of interlocutory injunctions are “settled” or “well established”, I am not certain that this is so. The formulation adopted in Castlemaine Tooheys appears to treat “irreparable injury” as a distinct requirement which must be demonstrated by the applicant for relief but which, if established, is not necessarily determinative, in the sense that discretionary considerations going to the balance of convenience may militate against the granting of the particular relief that has been sought. On the other hand the formulation adopted, for example, in Beecham would see “irreparable injury” as no more than a relevant (albeit, usually, an important) consideration to be taken into account in evaluating where the balance of convenience lies. According to this formulation, the failure by an applicant to establish that it has suffered “irreparable injury” will not, of itself, be decisive against the granting of the particular relief that has been sought.
63. In GlaxoSmithKline at [58] Weinberg J referred to the debate between commentators as to the requirements to be established in order to obtain interlocutory injunctive relief. His Honour saw the observations of Gleeson CJ and Crennan J in O’Neill at [19] (to which reference has been made above) as clarifying the issue. However, as also pointed out above, Gummow and Hayne JJ in the same case at [65] saw the formulation in Beecham as explaining the relevant principles in Australia. In my view this is significant.
64. It may well be that, in many cases, any difference in approach of the kind to which I have referred will not be decisive in determining the justice and convenience of granting or refusing interlocutory injunctive relief. This may be, for example, because the applicant for relief is able to point to injury to a private or commercial interest for which damages would not be adequate compensation or because other discretionary reasons alone will be decisive against the granting of relief even if “irreparable injury” can be shown. However, plainly enough, this will not always be the case.
65. An important consideration in the present case is that Instyle’s claims arise from alleged contraventions of the TPA and corresponding provisions of the FTA. When the power to grant an injunction (whether interlocutory or final) under s 80 of the TPA is enlivened, special considerations apply, particularly those considerations revealed by the terms in which the statutory grant of power is made: Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at [28]- [29]. In this connection proof of “irreparable injury” does not seem to be necessary before the statutory power can be exercised: see in particular s 80(1), (2), (4) and (5) TPA. The position is the same under broadly corresponding provisions of the FTA: see s 65(1), (4), (6) and (7) FTA.
66. In World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 Bowen CJ at 186-187 said:

Proceedings under the Trade Practices Act have a special character in that the Act deals with the protection of the public interest, and in the instant case, with the protection of consumers. In the course of protecting that public interest, the Act also enables a party to seek relief from injury to his own interests. An applicant for an injunction under s 80 need not show that a proprietary interest of his is affected, or that he has suffered special damage, or indeed, that he personally has suffered any damage at all. Even where the application is brought by a rival competitor seeking redress of damage to his business caused by the allegedly unfair and illegal practices of the respondent, the application, though it vindicates or protects the private interests of the competitor, at the same time secures the public interest of consumer protection. Though, for example, the complaint under Pt V of the Act in some cases closely resembles an action for passing off or trade libel, it is nevertheless an action to protect the consuming public from being misled or misinformed. For competition between rival traders properly to be promoted, it is necessary that the relevant market is kept adequately informed about the goods or services available for purchase, and is not misled by deceptive trade practices.

See also the observations of Franki J at 194.

67. In Ricegrowers’ Co-operative Ltd v Howling Success Australia Pty Ltd (1987) ATPR ¶40-778 at 48,492 Gummow J, in this Court, said:

Section 80 of the Act is not simply the casting into statutory form of the traditional equity jurisdiction to grant injunctive relief for breach of statutory duties or prohibitions. The creation by statute of a remedy identified therein as an "injunction" presents a threshold question. This is whether on its proper construction the statute (a) does no more than import the remedy of injunction developed by courts of equity or (b) adopts or modifies the characteristics that identify an injunction in those courts: World Series Cricket Pty. Ltd. v. Parish (1977) ATPR ¶40-040; (1977) 16 A.L.R. 181 at pp. 185-187 (Bowen C.J.), pp. 199-200 (Brennan J.); Corvisy & Anor v. Corvisy (1982) 2 N.S.W.L.R. 557 at pp. 558-9; Appleton Papers Inc. v. Tomasetti Paper Pty. Ltd. (1983) 3 N.S.W.L.R. 208 at p. 215; Tytel Pty. Ltd. and Ors v. Australian Telecommunications Commission (1986) ATPR ¶40-711 at pp. 47,783-47,784; (1986) 67 A.L.R 433 at p. 441; cf. South Carolina Insurance Co. v. Assurantie Maatschappij' de Zeven Provincien' N.V. (1986) 3 All E.R. 487 at pp. 495-6 (H.L.).

Section 80 falls in category (b). Thus, in respect of sec. 80 the traditional requirement for protection of private rights, that unless an injunction be granted there will follow irreparable injury inadequately compensated in damages, is qualified by the terms of subsec. (4)(c) and (5)(c).

See also ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 256-257 and 263-264.

68. Instyle seeks to enliven that statutory power in the present case. Also, even though Instyle seeks to vindicate its own rights, its claims have aspects which extend beyond those rights and which affect the interests of the public more generally, including other suppliers of fabrics and manufacturers of furniture seeking fabrics for their furniture. This is a relevant consideration to be taken into account in granting or refusing injunctive relief, whether as final relief or as interlocutory relief.
69. In the present case the parties did not seek to agitate the principles on which interlocutory injunctive relief is granted. Instyle submitted that interlocutory relief pending a final hearing depends upon establishing that there is a serious question to be tried and that the balance of convenience favours the grant of the interlocutory relief. In so putting its case, it appeared to adopt the approach in Beecham, even though it cited Castlemaine Tooheys in support of that approach. It put to the forefront of its submissions on the balance of convenience the submission that, if the interim relief it sought was not granted, it might lose its competitive share of the market by reason of the alleged activities of the respondents, for which damages would not be an adequate remedy.
70. The respondents did not take issue with Instyle’s statement of what is required to be shown in order for interlocutory injunctive relief to be granted.
71. In light of the way that the parties have presented for determination this aspect of the principal motion, and bearing in mind that the application is one involving the exercise of statutory powers under s 80 TPA and s 65 FTA, I am of the view that I should direct myself to considering whether there is a serious question to be tried (in the requisite sense) and to determining where the balance of convenience lies in either granting or refusing the injunctive relief that is now sought, having regard to the nature and circumstances of the case as they are now presented. It follows, in my view, that in order to obtain interlocutory injunctive relief, it is not necessary for Instyle to establish that it will suffer irreparable injury unless an injunction is granted. I do note, however, that it relies upon the likelihood of such injury as important in determining where the balance of convenience lies. In considering the balance of convenience it is appropriate, in my view, that I also take into account the interests of the public more generally who are also likely to be affected by the impugned conduct, or by any order that is made.
72. As to the first of these considerations, the respondents accepted for the purposes only of the principal motion that there is a serious question to be tried in the requisite sense. That acceptance, however, had its limits. The respondents disputed the existence of a number of allegations of fact relied upon by Instyle that had been pleaded in the 2FASC. For example, with respect to paragraph 50 of the 2FASC, the respondents did not accept that the Market Advisories had been sent on behalf of GECA and Mr Johnson. With respect to paragraph 53 of the 2FASC, the respondents did not accept that the Long Form Market Advisory made each or any of the alternatively pleaded representations in sub-paragraph (a) of that paragraph of the pleading. Moreover, the respondents contested the strength of Instyle’s case for injunctive relief as that case was revealed by the evidence tendered on the principal motion. Indeed, they submitted that Instyle’s case was “not a strong case”. Although this submission was made in the context of the Market Advisories claim, I understood the submission to be more generally based and to extend to all claims for injunctive relief sought at this stage of the proceeding.
73. The respondents focused on the breadth, scope and form of the relief that was sought and made a number of submissions to the effect that the balance of convenience weighed strongly against the granting of that relief (including the fact that damages would be, in any event, an adequate remedy).
74. Given that the strength of the applicant’s case for final relief is relevant to, and can affect, the balance of convenience in respect of the granting of relief at the interlocutory stage (Castlemaine at 154; Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 at 416; Biochemie at [31]; Hexal at [18]), it remains necessary for me to consider the evidence as it relates to the weighing of competing interests in the balance of convenience, notwithstanding the respondents’ qualified acceptance that there is a serious question to be tried in relation to Instyle’s claims for final relief. This is best done in the course of considering each injunction that is sought by Instyle.
75. There is a further matter. Not every injunction sought by Instyle in the principal motion is interlocutory in form. Paragraph 5 of the principal motion seeks an injunction requiring, amongst other things, GECS to publish a statement that it retracts various statements made in the Market Advisories. The order is plainly final in form. The order is also plainly mandatory, as opposed to prohibitory, in character. It is appropriate that I say something about the principles by reference to which such relief is granted at the interlocutory stage.
76. There is some debate in the authorities concerning the test to be applied when a mandatory injunction is sought at the interlocutory stage. In State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 at 245 Gibbs CJ, in refusing to grant a mandatory interlocutory injunction, adopted the observations of Megarry J in Shepherd Homes Ltd v Sandham [1971] Ch 340 at 351 that, in the normal case, the court must “feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted” and that “this is a higher standard than is required for a prohibitory injunction”. This approach has been adopted in a number of cases, including in relatively recent times: see, for example, Storm Financial Limited v Commonwealth Bank of Australia [2008] FCA 1991 at [5].
77. In Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 501-504 Gummow J, in this Court, gave detailed consideration to the principles to be applied when a mandatory injunction is sought at the interlocutory stage. His Honour did not consider himself bound by what Gibbs CJ had said in this regard in State of Queensland v Australian Telecommunications Commission and declined to follow the approach of Megarry J in Shepherd Homes. In this connection his Honour (at 503-504) eschewed any principle which required a higher standard to be applied for the grant of an interlocutory mandatory injunction than for an interlocutory prohibitory injunction. His Honour accepted a number of observations made by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 722 concerning the granting of mandatory injunctions in the general equity jurisdiction, including that the court is more reluctant to make such an order against a party who has not had the protection of a full hearing at trial. I should add that his Honour also remarked that statutory grants of particular injunctive powers, such as s 80 TPA, may require special consideration in this regard. It was not necessary, however, for his Honour to pursue that issue.
78. In Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119 Kiefel J, in this Court, also gave detailed consideration to the principles to be applied when a mandatory injunction is sought at the interlocutory stage. Her Honour rejected the notion that the technical classification of an order as “mandatory” automatically attracts the requirement that the court have further confidence in the correctness of the order through an examination of the strength of the applicant’s case: at 123C-D. Her Honour saw the issue as one to be dealt with by considering the balance of convenience. Her Honour observed that what is first required in that regard is a consideration of the effect that the order will have. If the order can be seen to have a “profound” effect (such as where the order finally determines the matter so that a defendant, who has raised a triable issue, is denied a right to a full hearing) then “the making of the order cannot be justified without another strong factor being able to be weighed against these effects and that factor may be a strong case being shown for final relief, although the difficulty in assessing it at an interlocutory stage may often have the result that the relief is denied”: at 123D-F.
79. Although Kiefel J expressed difficulty with some observations made in Films Rover with which Gummow J had expressed acceptance in Businessworld Computers, it seems to me that, in presently relevant respects, there is no necessary inconsistency between Kiefel J’s observations in Racecourse Totalizators and Gummow J’s observations in Businessworld Computers. Indeed, in the respects which I have noted, I read those cases as saying that no difference in approach is mandated depending on the mere characterisation of the order as “mandatory” or “prohibitory”.
80. It is uncontroversial that an important consideration relevant to determining the balance of convenience is whether the order that is sought will, in a practical sense, determine the substance of the matter in issue. This consideration does not become controversial because an order having that effect can be characterised as being “mandatory” as opposed to being “prohibitory”. It is also uncontroversial that the strength of the applicant’s case for final relief is a consideration that is relevant to determining the balance of convenience in granting or refusing a specific order. It is difficult, therefore, to see how the relationship between these two considerations can vary in determining where the balance of convenience lies in a given case simply by reason of a process of characterisation of the order as “mandatory” or “prohibitory” and nothing more.
81. With these observations in mind it seems to me that it is appropriate that, in relation to all injunctions sought at the present time, I should take into account (together with all other relevant considerations) the strength of Instyle’s case for final relief, as revealed by the presently available evidence, and the likely effect that each order as presently sought, if made, would have. I will do so, however, without applying any different standard based on whether the order that is sought is “prohibitory” or “mandatory” in character.

The orders sought in paragraph 3 of the principal motion

82. Paragraph 3 of the principal motion seeks, in the alternative, orders in the following terms:

That each of the First Respondent, Second Respondent and Third Respondent be restrained until further order of the Court from making or publishing any statement to any person directly or indirectly involved in the manufacture, specification, supply or acquisition of furniture or textiles that is inconsistent with:

(a) Any matter set out in paragraphs 17B and 18 of the Second Further Amended Statement of Claim, or alternatively

(b) Any matter set out in:

(i) Standard No 28-2006: Furniture and Fittings as published by the Third Respondent (the GECA Furniture Standard); and

(ii) The following Green Building Council of Australia publications to the extent to which the matter relates to the calculation of the product score towards a Green Star rating of products within categories 2.1, 2.2, 2.6 and 2.7 of the GECA Furniture Standard which have been certified as being compliant with that Standard:

(1) The pages of information which make up the Green Building Council of Australia’s website and which respectively have the following web addresses –

(A) http:/www.gbca.org.au/green-star/rating-tools/

(B) http://www.gbca.org.au/green-star/rating-tools/green-star-office-interiors-v1-1/1530.htm

(C) http://www.gbca.org.au/green-star/technical-clarifications-cir-sulings/material-calculator-guide/2287.htm

(D) http://www.gbca.org.au/green-star/technical-clarifications-cir-rulings/technical-clarifications/1734.htm

(E) http://www.gbca.org.au/green-star/technical-clarifications-cir-rulings/credit-interpretation-request/1735.htm

(F) http://www.gbca.org.au/uploads/204/972/Technical%20Clarifications%20and20CIR%20Spreadsheet%2020091016.xls, but limited to the information contained under the worksheets respectively named “Definitions” and “Mat”.

(2) green star Office Interiors v1.1 Technical Manual.

(3) green star Material Calculator Guide Version 3 October 2009.

83. The proposed order relates to conduct referable to the Corporate Express claim and the EPD claim.
84. Before dealing with the evidence that is relied on to support the granting of either of these injunctions I should record the parties’ contentions as to how, in presently relevant respects, the GECA Furniture Standard is to be interpreted.
85. As I presently understand the matter, the respondents do not contend that sections 3.2 and 3.2.3 of the GECA Furniture Standard have a meaning which differs from that put forward by Instyle, except in perhaps two respects. The parties appear to accept that section 3.2 dealing with Material Requirements only applies to each type of material contained in the finished product that contributes 10% or more to the weight of the product. Thus where the material contributes less than 10% to the weight of the product, the specific requirements of section 3.2 do not apply to that material. It is convenient to refer to this as the 10% exemption. Where the material is fabric and comprises more than 10% of the total weight, it must be certified as stated in section 3.2.3 or satisfy the requirements of the GECA Textiles Standard. The two respects in which there might be disagreement between the parties are the meaning in section 3.2.3 of the words “certified by the Good Environmental Choice Label” and the meaning in the same section of the words “satisfy the requirements” of the GECA Textiles Standard. It is not necessary to detail or dwell on these possible disagreements because, at least in relation to the EXP chairs, there is no dispute about the fact that the fabric component in those chairs would contribute less than 10% to the weight of the product. Therefore the 10% exemption would apply. The respondents contend, however, that this does not mean that an assessment of the fabric is removed from all consideration when certification under the GECA Furniture Standard is sought in respect of a finished product (as distinct from certification of an unfinished product as white furniture). The respondents contend that when certification is sought in respect of a finished product then all components of the finished product must comply with the other sections of the GECA Furniture Standard, even though section 3.2 (and thus, in the case of fabric, section 3.2.3) does not apply because of the 10% exemption.
86. In the present case the respondents contend that Corporate Express was seeking certification of its EXP chairs as a finished product (and not as white furniture as Instyle contends). Even though the 10% exemption would apply in respect of those chairs, the respondents contend that it would still be necessary for all components (including the fabric) to comply with section 3.1 (Fitness for Purpose), section 3.3 (Hazardous Materials) and section 3.4 (Part Consumption Recycling and Labelling). The respondents contend that it would also be necessary for Corporate Express to comply with sections 4 and 5 relating to various “regulations”. Moreover the respondents contend that compliance is not a matter of self-assessment. Rather, section 6.1 of the standard mandates independent assessment by an approved assessor which, in this case, could only be GECS acting through its employees or contractors.
87. Whether these contentions are correct will be a matter for the final hearing. It is sufficient for the present purposes to note that there are differences between the respondents’ interpretation of the GECA Furniture Standard and Instyle’s interpretation of the standard as pleaded in paragraph 17B of the 2FASC.
88. The following differences, at least, emerge. First, paragraph 17B(b) of the 2FASC pleads that any textile contributing less than 10% by weight can be used to upholster furniture certified under the GECA Furniture Standard, provided that the textile conforms with the requirements of section 3.3 of that standard relating to Hazardous Materials. As will appear from the discussion above, the respondents contend that the textile component and the applicant for certification must comply with all sections of the standard, save only for section 3.2 when the 10% exemption applies.
89. Secondly, paragraph 17B(c) of the 2FASC pleads that any textile can be used to upholster furniture certified under the GECA Furniture Standard even if it contributes more than 10% by weight provided that the textile conforms with the requirements of section 3.3 of the GECA Furniture standard and satisfies the requirements of the GECA Textile Standard. The respondents contend that, in this instance, the textile component, and the applicant for certification, must comply with all sections of the GECA Furniture Standard. It is not clear whether the respondents accept that satisfaction of the requirements of the GECA Textiles Standard with respect to a particular fabric results in the fabric complying with all sections of the GECA Furniture Standard as they relate to that component. There is some suggestion in the evidence that GECS holds the view that satisfaction of the requirements of the GECA Textiles Standard would result in the fabric complying with section 3.3 of the GECA Furniture Standard. As I understand their position, the respondents also contend that the question whether a textile “satisfies” the requirements of the GECA Textiles Standard, within the meaning of section 3.2.3 of the GECA Furniture Standard, is one to be determined by GECS. In other words, that question is not one to be determined by self-assessment or by an unapproved third party. Instyle appears to contend otherwise.
90. A third possible difference emerges. The respondents submitted that paragraph 17B(a) of the 2FASC suggests that there is a statement in the GECA Furniture Standard to the effect that any textile can be used to upholster GECA certified white furniture. They submit that there is no such statement in the standard. I do not understand Instyle to be contending that there is any such statement. I would not necessarily read paragraph 17B(a) in the way that the respondents have read it. I suspect that there is really no dispute between the parties on that particular issue.
91. I now return to the evidence.
92. Instyle relied on an affidavit sworn on 30 September 2009 by its solicitor, Mark Anthony Fraser, in which evidence to the following effect was given on information and belief. Mr Haigh was identified as the source of this evidence:

(a) Corporate Express applied to GECS to have its EXP chairs certified as being compliant with the GECA Furniture Standard as white furniture.
(b) Corporate Express wished to have its EXP chairs certified as white furniture so that it had the flexibility of being able to upholster those chairs using any fabric that its customers may desire to use.
(c) Instyle was at the time of the application referred to in paragraph (a) Corporate Express’ preferred supplier of fabrics.
(d) GECS requested Corporate Express to provide evidence that Instyle’s LIFE Textiles range of fabrics complied with the requirements of section 3.3 of the GECA Furniture Standard.
(e) Corporate Express requested Instyle to provide this evidence.
(f) Instyle supplied a letter dated 24 February 2009 to Corporate Express in which it declared that its LIFE Textiles range of fabrics complied with the requirements of section 3.3 of the GECA Furniture Standard.
(g) Corporate Express supplied Instyle’s letter dated 24 February 2009 to GECS.
(h) GECS did not request either from Corporate Express or from Instyle alternative or additional evidence of the compliance of the fabrics with section 3.3 of the GECA Furniture Standard.
(i) On or about 2 April 2009, Corporate Express sent an email to GECS requesting advice as to what additional information and documents Corporate Express had to supply in order to achieve certification.
(j) On or about 2 April 2009, Mr Johnson and Mr Haigh held a telephone discussion in which statements to the following effect were made:
(i) Mr Johnson advised that the only outstanding requirement related to fabric to be used in upholstering the EXP chairs.
(ii) Mr Johnson advised that Corporate Express could only have its EXP chairs certified as white furniture if Corporate Express agreed to only use textiles certified as being compliant with the GECA Textiles Standard.
(iii) Mr Johnson also advised that it was necessary for fabrics to comply with section 3.3 of the GECA Furniture Standard and that the only practical option for demonstrating compliance was to use a textile certified as being compliant with the GECA Textiles Standard.
(k) Mr Haigh understood from this telephone discussion that Corporate Express’ only real option in upholstering its EXP chairs was to use a textile that had been certified as complying with the GECA Textiles Standard.

93. The respondents answered this hearsay evidence in kind by an affidavit sworn on 26 November 2009 by Tamara Young, a solicitor at DLA Phillips Fox, who are the solicitors for GECA. In this regard Ms Young also identified Mr Haigh as the source of her evidence. Her evidence was to the following effect:

(a) When the application by Corporate Express for certification was first submitted, Mr Haigh had been working at Corporate Express for only a short period, although he had previously worked at Staples, which is the head company of Corporate Express. He “picked up” the GECA application for the EXP chairs from his predecessor.

(b) The main reasons for Corporate Express seeking GECA certification of its EXP chairs were as follows:

(i) Corporate Express is the third largest corporate furniture supplier in the industry, and Corporate Express had been asked on a number of its larger projects to have GECA certification of its furniture.

(ii) Corporate Express has been on the environmentally friendly pathway for around 10 years and GECA certification was in line with Corporate Express’ history of getting ahead in having environmental products.

(c) The concept of obtaining GECA certification for white furniture was not something that Corporate Express was interested in as:

(i) Corporate Express sells finished furniture and wanted to market that finished product as being GECA certified; and

(ii) if Corporate Express was only to get white furniture certified, and then allow fabrics such as leather, vinyl or plastic on it, then all of the good work that Corporate Express had done to get environmentally preferable products would go out the window.

(d) There are two main ways that Corporate Express receives orders for its chairs, namely:

(i) from specifiers, for example, government departments, who specify fabrics that they require on their furniture, or

(ii) through the Corporate Express catalogue (which includes the EXP chairs). Purchasers of chairs from the catalogue are given a set range of fabrics from which to choose.

(e) Mr Haigh did not want Corporate Express to market its chairs as a GECA certified frame with uncertified fabric because it was not consistent with Corporate Express’ environmental initiatives and the fact that it has built up a reputation as being ethical. Corporate Express did not want to risk damaging that reputation.

(f) During the certification process in 2009, Mr Haigh had a copy of the GECA Furniture Standard and questioned GECS as to whether the 10% exemption by weight criterion in relation to fabrics (section 3.2.3) would apply. Mr Haigh was advised by GECS that:

(i) Corporate Express would still need to prove that the textile to be used did not have hazardous materials and complied with section 3.3 of the GECA Furniture Standard; and

(ii) in order to satisfy section 3.3, Corporate Express would need to either:

- provide material safety data sheets for the textile; or

- ensure the textile was certified under the GECA Textiles Standard.

(g) Mr Haigh asked Instyle to provide him with material safety data sheets. He was told that it is extremely rare to have material data safety sheets for fabric because it is a finished product. Mr Haigh then told Instyle that if it could not get material data safety sheets, it would need to get its fabric certified under the GECA Textiles Standard.

(h) As Instyle had confirmed that it could not provide material safety data sheets, and its fabrics were not certified, Mr Haigh sent an email to Michael Fitzsimons, Managing Director of Instyle, confirming that Corporate Express was unable to use Instyle’s fabrics on the EXP chairs and retain GECA certification.

94. Ms Young also deposed to a conversation she had with Mr Haigh on 24 November 2009. She deposed to the questions she asked Mr Haigh and the effect of his responses, as follows:

(a) Did Corporate Express apply to GECS to have its [EXP chairs] certified as compliant with the GECA Furniture Standard as white furniture?

“The Short [sic] answer is ‘No’. There was nothing on the GECA Application Form to specify [white furniture]. Corporate Express applied for certification of its Chairs.”

(b) Did Corporate Express wish to have its [EXP chairs] certified as white furniture so that it had the flexibility of being able to upholster those chairs using any fabric which its customers may desire to use?

“In the event that the 10% by weight argument was acceptable to GECA/GECS, then this would have been something that I would have considered. As the GECA certification hinged on the Hazardous Materials requirement, then [white furniture] is a side issue, because it was necessary to use certified textiles.

I wanted to make sure that we had a complete GECA certified chair. We only sell complete chairs. If I have any item on it which infringes certification, then I would not want this. It would be like buying a car without wheels.

At the time of the application, I did not even know what [white furniture] was in the context of the application for GECA certification.”

95. It is readily apparent that there are material differences in the information provided by Mr Haigh to Mr Fraser, as deposed to by Mr Fraser, and the information provided by Mr Haigh to Ms Young, as deposed to by Ms Young, including the nature of the Corporate Express application for certification and Corporate Express’ objectives in seeking certification. Plainly it is not my task to resolve these differences in the present application, even if the evidence were in a form that would permit me to do so (which it is not). It is sufficient for me to say that, on this body of evidence, I am left in some considerable uncertainty as to the nature of Corporate Express’ application for certification and what information passed between Mr Haigh and Mr Johnson in their conversations.
96. The email of 3 April 2009 from Mr Johnson to Mr Haigh is in evidence. It responded to an earlier (undated) email from Mr Haigh to Mr Johnson dealing with various matters. Relevantly, Mr Haigh’s earlier email to Mr Johnson said this:

Following our discussions regarding fabrics, please will you detail for me the requirements for textiles as I have clearly misunderstood the process. From my understanding section 3.2.3 in the GECA 28-2006 Furniture and Fittings standards states that:-

“All fabric comprising more that 10% of the total weight of the product must be certified by the Good Environmental Choice Label, the EU Flower label or the Nordic Swan label, or satisfy the requirements of Standard No. 19: Textiles”.

The inference here is that textiles used that are below 10% weight don’t require certification, or the requirement to meet the Standard 19: Textiles. As the textiles weight used in the chairs is well below the 10% I would (having read the standard) expect that textiles could be sourced from any textile vendor, however our conversation last night suggested otherwise. In order to ensure that the certification process is not held up, I will commit to using Macquarie textiles on the EXP Green chairs in the first instance, however as we also use Laines and Instyle I am keen to understand what is required in order that their textiles can be used on our chairs.

97. Mr Johnson’s email response on 3 April 2009 was, relevantly, as follows:

The 10% exemption by weight criterion does not apply to adhesives or textiles under this standard, as they are both always under 10% by weight and that they have always been treated as a primary environmental improvement benchmark assessment.

In correspondence with GECA, the standards provider at the early commencement of this standard in 2007 the declaration was confirmed that it was not the intention of this exemption to apply to any component that is specifically listed in the rest of the standard. This means that all materials listed in the product standard are not to be exemption under this criterion. The intention of this exemption was to allow non assessment of some standard material used in this industry such as underlay, steel sheeting, handles and smaller fittings.

The requirement for the use of a compliant textile product has been a standard requirement for seating products since the early days of this standard and has been the basis of assessment for all certified manufacturers. While manufacturers are able to have their product certified as white furniture, such a certification does not allow them to earn full points under the GBCA Green Star framework. Such sales are allowed under the licence, but the licence cannot be provided as evidence of compliance to the Environmental Choice Australia Mark when such sales are made. In such instances we also request that the standard textile covering used on the furniture offered to the market is a compliant textile.

Please review the current certified textiles at:
http://www.geca.org.au/productsregister.htm
We would be happy to consider your current primary textile supplier however an assessment would need to proceed against the current textile standard. I have attached this standard for your review.

98. The above quotations are in the precise terms used by the authors. I have not sought to identify or highlight what might be regarded as errors or infelicities or obscurities of language in these communications. The “correspondence with GECA” at “the early commencement” of the standard to which Mr Johnson referred in his email is not in evidence.
99. I must confess to having difficulty in understanding what Mr Johnson was saying in parts of the above quotation from his email. The opening words of the quotation do, however, contain the statement that the 10% exemption does not apply to textiles. There is little doubt that Mr Johnson was responding to Mr Haigh’s specific question with respect to section 3.2.3 of the GECA Furniture Standard. Mr Johnson’s statement does seem at odds with the plain words of section 3.2.3 and also of section 3.2 of the standard. It also seems at odds with the respondents’ acceptance in submissions that if the fabric is less than 10% of the total weight of the product then it is exempted from the requirements of section 3.2 of the standard. In this connection Instyle also pointed out that the respondents had specifically pleaded in their defence that Instyle’s fabric, being less than 10% (by weight) of the EXP chairs, did not need to comply with section 3.2 of the GECA Furniture Standard: see paragraph 25.2.2 of the defence filed by GECS and Mr Johnson on 16 September 2009 and paragraph 25.2.1 of the defence filed by GECA on 15 September 2009.
100. Before passing from the email, Mr Johnson’s statement to the effect that certification under the standard of a product as white furniture does not allow the product to earn full points under “the Green Star Rating framework”, raises another matter that is contentious. On 17 August 2009 Mr Johnson’s statement was put, in terms, to GBCA in an email from Tracy Mak, Instyle’s Environmental Manager, with a request that GBCA advise whether the statement was true. Instyle received advice from GBCA to the effect that, where 90% or more (by mass) of the components of a product can be categorised as “Environmentally Innovative”, the whole product can be so categorised in the calculator used to determine Green Star rating points and any non-compliant components can be disregarded. The effect would be to allow full rating points to be achieved, contrary to Mr Johnson’s statement. It seems, however, that GBCA’s advice was based on a “technical clarification” that, as at 28 August 2009, had been issued only “very recently” and was still not in the public domain. The evidence does not reveal what the position was as at 3 April 2009 when Mr Johnson sent his email to Mr Haigh. On the present evidence it seems most unlikely that this “technical clarification” was in effect. I am certainly not prepared to find that it was in effect.
101. In paragraph 20 of his affidavit Mr Fraser identified copies of documents which he said “evidence further possible breaches of the Trade Practices Act 1974 and of the Fair Trading Act 1987 by one or more of the Respondents”. I should say at the outset that, although objection was not taken to the tender of this evidence, it seems to be of doubtful relevance to the claims as they are now pleaded in the 2FASC. The general thrust of this evidence is that persons seeking certification under the GECA Furniture Standard of a chair product were informed that it was necessary to use a GECA approved or certified fabric or leather. Because of the hearsay nature of the evidence (in some cases, remote hearsay) and because of the imprecision with which the evidence is expressed, it is not possible to make any finding as to what specifically these persons were told or to make any meaningful finding as to the circumstances in which or the reasons why the information was conveyed. The evidence, such as it is, is expressed at a high level of generality and, in my view, is ambiguous. I cannot place any significant weight on it, even if it be relevant.
102. Instyle specifically drew my attention to an example of this evidence, which was an email from Carl Davies from Chair Solutions Pty Limited (Chair Solutions) to Mr Marshall from GECS on 4 November 2009 referring to a discussion between them (apparently two weeks previously) concerning advice from Mr Marshall not to use any fabric not covered by GECS certification in relation to “our GECA approved chair range”. The email also refers to another email (not in evidence) which had been received by Chair Solutions approximately four weeks previously. According to Mr Davies’ email, Mr Marshall had explained to him in the discussion that section 3.2.3 (presumably of the GECA Furniture Standard) “did not apply”. Mr Davies’ email of 4 November 2009 was seeking clarification about that matter. Instyle submitted that it was conspicuous that this email has not been answered by GECS. However, Mr Marshall’s earlier explanation, and the circumstances in which he gave it, are not in evidence. I should add that the email of 4 November 2009 seems to have been sent in the context of Mr Davies raising the possibility of substituting fabrics for a product already having a GECA certification. Whether this was also the context for the earlier discussion is not at all clear. It is at least possible that it was, because the email records Mr Marshall having mentioned the need for fabrics to be checked for “hazardous substances” and “heavy metals”. There is some remote hearsay evidence that Mr Marshall had told Mr Davies that GECS intended to amend the standard. On the present evidence the specific dealings between Mr Davies and Mr Marshall are not clear. Indeed, the position is obscure. Once again, even if the evidence be relevant, I cannot place any significant weight on it.
103. Instyle tendered a large number of EPDs with respect to various identified branded products that had been certified within the period February 2007 to October 2009. So far as I can tell, only three of these are EPDs identified in Annexure 1 to the 2FASC, namely the EPDs issued to Inline Contract Furniture Pty Ltd (2007), to Chair Solutions (2008) and to Hufcor Group and Kyissa Pty Limited (2008). No objection was taken to the tender.
104. A purpose of tendering these documents, as I understand it, was to show examples of what Instyle regarded as conduct that was “inconsistent” with the GECA Furniture Standard, as well as conduct that Instyle regarded as being “consistent” with the standard. I note that none of these documents relate to Instyle or its fabrics.
105. The EPDs included a table setting out Key (or Core) Environmental Performance Findings (or Characteristics) against which the particular products were assessed. The presentation of the tables in the EPDs varied considerably. In some cases the table included as one criterion the requirement set out in section 3.2.3 with respect to “fabrics” in terms which omitted the qualification that the requirement only applies when the fabric comprises more than 10% of the total weight of the product. Instyle submitted that this was conduct that was “inconsistent” with the GECA Furniture Standard. In a number of these cases, however, the product was being certified as white furniture. Therefore, in those cases, the requirements of section 3.2.3 were irrelevant to the certification and the EPD in question.
106. In some cases section 3.2.3 was materially reproduced in the EPD with the 10% qualification relating to fabrics.
107. Significantly, in some cases, the EPD was with respect to certification under a different standard, and not the current GECA Furniture Standard. Having said that, in one instance (Ofquest Australia Pty Limited trading as Desking Systems Australia) the table in the EPD included the 10% qualification relating to fabrics where the relevant standard was identified as GECA 28-2005-Furniture and Fittings, indicating that this qualification was present in an earlier GECA standard.
108. In some cases no material from section 3.2.3 of the GECA Furniture Standard was reproduced, but an acknowledgment by the manufacturer was made in the following terms:

The manufacturer has acknowledged and the license conditions stipulate that only fabrics assessed according to the relevant Environmental Choice Australia Standard requirements can be used in certified furniture. This includes textiles certified as compliant to the Environmental Choice Australia Mark, Nordic Swan, EU Flower, or those that have been assessed in the scope of this assessment and found to be in conformance with the relevant criteria in the GECA Furniture and Fittings Standard.

109. The circumstances in which, and the reasons why, acknowledgments in this form came to be made are not in evidence. Instyle submits that I should infer that what the manufacturer had acknowledged was an obligation it saw as being imposed by GECA in purported compliance with the GECA Furniture Standard. Even if I were to make this inference, I do not think that this carries the matter much further because it is clear from paragraph 17B(b) of the 2FASC that Instyle accepts that, even when the fabric weight contributes less than 10% of the weight of the finished product, the fabric must nevertheless comply with at least section 3.3 of the GECA Furniture Standard if the finished product is to be certified as compliant with that standard. In short, it is not apparent why the statement, as quoted, is necessarily inconsistent with the requirements of the GECA Furniture Standard as propounded by Instyle in its own pleading.
110. The EPD with respect to Chair Solutions states:

Chair Solutions offer a range of fabrics for customer selection. Fully certified chairs are those which are upholstered in fabrics certified by Nordic Swan, EU Flower or which carry the Environmental Choice Australia Mark.

111. In its written submissions, Instyle submitted that this statement was inconsistent with the GECA Furniture Standard. In this connection it submitted, amongst other things, that a chair upholstered with a textile that has not been certified as being compliant with the GECA Textiles Standard can be part of a chair certified on “a whole of chair basis”, regardless of the weight of the fabric. This submission does not directly engage what the quoted statement actually says. The quoted statement makes no reference to the GECA Textiles Standard. The assumption behind the submission seems to be that the reference in the quoted statement to the Environmental Choice Australia Mark is in fact a reference to certification under the GECA Textiles Standard. It is not at all clear, however, that this assumption is correct. The statement could equally be a reference to separate certification under the GECA Furniture Standard.
112. The EPD with respect to Hufcor Group and Kyissa Pty Ltd is in a similar position. It states:

Only fabrics certified under the Environmental Choice Australia Mark can be specified for certified products.

Once again the challenge to this statement depends on the meaning to be attributed to “the Environmental Choice Australia Mark” and other facts which are not in evidence.

113. Taking all these considerations into account, it does not seem to me that Instyle’s reliance on the EPDs significantly advances its claim for the relief it seeks in paragraph 3 of the principal motion.
114. Before passing from the EPDs I should note one further example because it relates specifically to that part of Instyle’s case concerning alleged misleading or deceptive conduct or misrepresentation in connection with the requirements for Green Star Rating credit points. The EPD relating to Formay Furniture Pty Limited included a statement that, although the products were certified as white furniture, “the nominated product lines will be required to have certified textile in order to comply to the full point score available under the Green Star Rating Tool in Australia”. Instyle submitted that this statement was inaccurate. However, it is not possible to form even a preliminary view on that matter because the “Green Star Rating Tool” as at the date of the EPD (namely 7 July 2008) is not in evidence. As I have already noted, the “technical clarification” on which Instyle relies was one that was said to have been made only “very recently” and had not even been published as at 28 August 2009, a significant period of time after this EPD was apparently published.
115. Having reviewed and reflected on the evidence and on the oral and written submissions of the parties, it is clear to me that the parties are not only at issue with respect to the interpretation of aspects of the GECA Furniture Standard, but also with respect to how the standard is to be applied and has been applied in given circumstances. How the standard is to be applied or has been applied throws up factual issues which will be peculiar to the nature and purpose of a given application for certification (for example, whether the application relates to finished goods or white furniture) and the objectives and intentions of the person who seeks or who has obtained that certification with respect to that person’s future dealings with and promotion of the certified product.
116. These considerations may well be influential with respect to the way that GECS or GECA seeks to explain or has explained to a given applicant for certification or a licensee what the standard means or how the standard applies in the given circumstances. This is not to say that GECS or GECA has a licence to explain or apply the standard in some idiosyncratic way; still less is it a licence to GECS or GECA to misrepresent what the standard actually says. It must be borne in mind, however, that statements, whether written or oral, which are viewed in the abstract or at least viewed without a full understanding of all the surrounding circumstances, may not truly reflect what was actually conveyed in the circumstances. It will be apparent from my summary of the evidence thus far that the facts are far from complete and, in some cases, are unclear.
117. Instyle’s submissions on this part of the principal motion were directed primarily to the order sought in paragraph 3(a) of the principal motion. It was this form of the injunction that was pressed rather than the alternative injunction sought in paragraph 3(b) which was said by Instyle to be “very much a subordinate claim”.
118. Instyle submitted that, if an injunction in terms of paragraph 3(a) of the principal motion is not granted, it will suffer substantial damage and that the respondents’ conduct could potentially do irreparable harm to its business. It submitted that the damage arising from the Corporate Express claim alone is presently estimated at $400,000.00 per year. It submitted that it may not recover this lost business in the future. It submitted that the respondents have created uncertainty in the market place about whether Instyle’s textiles can be specified and used on or as part of GECA certified furniture and that the respondents have taken no action to correct that uncertainty. It submitted that the respondents would suffer no damage, or at least only insignificant damage, as a consequence of an injunction being granted in terms of paragraph 3(a) of the principal motion because that injunction would only restrain the respondents from making statements inconsistent with the statements set out in paragraphs 17B and 18 of the 2FASC. Finally, Instyle submitted that there is a real “balance” in precluding the respondents from continuing to publish potentially (at least) misleading statements in the future (pending final hearing) whilst allowing them to retain the benefit of past uncorrected statements.
119. I accept that if the respondents have misrepresented the requirements of the GECA Furniture Standard then there is likelihood that Instyle will have suffered loss as a result. The present evidence suggests that Corporate Express committed to using the fabrics of another supplier, at least in the first instance, so that the certification process of the EXP chairs would not be held up while there was uncertainty about using Instyle’s and another supplier’s fabrics. However, that damage is capable of reasonable ascertainment and assessment. What is less clear is whether the respondents’ conduct, as alleged in the 2FASC with respect to the Corporate Express claim or the EPD claim, has caused or is likely to cause loss to Instyle which extends beyond the loss of sales of fabrics to Corporate Express to the loss of sales to others. Instyle adduced no evidence, for example, that its market share had been affected more generally by the conduct of which it complains in this regard. It is to be noted, for example, that there is no evidence that any statement made in any of the EPDs (which do not, in any event, relate to Instyle’s fabrics) has caused Instyle any loss of custom. Notwithstanding this, I am prepared to accept that there is some risk that the pleaded conduct with respect to the Corporate Express claim and the EPD claim as exemplified in the evidence, if wrongful as alleged, could cause loss or damage to Instyle extending beyond a loss of sales to Corporate Express, that would be difficult to detect and quantify. In this sense damages may not be an adequate remedy for Instyle should it be ultimately successful in this part of its claim, because, while its loss of sales to Corporate Express may be capable of being ascertained and assessed with reasonable certainty, the true effect of the impugned conduct on its business may not be known or at least fully known.
120. Instyle’s claim to the relief sought in paragraph 3(a) of the principal motion is, however, based on the interpretation and application of the GECA Furniture Standard for which it contends. The interpretation of the standard for which Instyle contends is disputed by the respondents. I am satisfied that the dispute is a genuine one and raises contestable issues. The dispute, however, goes beyond mere interpretation of the standard and, as I have said, extends to how the standard should be or should have been applied in given circumstances. It is plain that the correctness of the opposing positions can only be determined at a final hearing on all the evidence, whereas the relief that Instyle seeks would require GECA and GECS, who have the sole and exclusive authority to make and apply the GECA Furniture Standard, to interpret and apply that standard, and to conduct their future business dealings in that regard, in a way that is not inconsistent with how Instyle contends the standard should be interpreted and applied. To so order may well require GECS and GECA to change, significantly, the way in which the standard has been interpreted and applied by them, apparently for some time now, and to conduct their future business dealings in ways that are not inconsistent with (and, perhaps, only consistent with) what ultimately may be found to be an erroneous or misguided interpretation or application of the standard. Indeed, depending on how the case is decided at the final hearing, the relief sought in paragraph 3(a) of the principal motion, if granted, may work to mislead or deceive the trade and the public.
121. The respondents advanced what they submitted were other problems with respect to granting the relief sought in paragraph 3(a) of the principal motion.
122. First, the respondents pointed to the breadth of the order. They submitted that the order that is sought is not tied to Instyle or its products but, rather, is “at large”. This submission correctly identifies the breadth of the order that is sought, but that would not be, in my view, a reason for not granting relief in that form if it were otherwise appropriate to do so. Indeed, were the order to be conditioned as the respondents submit it should be, it would leave open the possibility of a differential interpretation and application of the GECA Furniture Standard, depending on whose fabrics were to be used. This would be undesirable and not in the public interest.
123. Secondly, the respondents pointed to what they submitted was a lack of specificity in the order that is sought. In this connection it is to be noted that Instyle seeks to enjoin the respondents from making or publishing any statement that is “inconsistent” with any matter pleaded in paragraphs 17B and 18 of the 2FASC. Apart from the problem relating to the contentious interpretation and application of the GECA Furniture Standard to which I have referred, the respondents submitted that an order in this form would be, in any event, unclear as to precisely what the respondents can and cannot say. In my view there is substance to this submission. An order in this form may well promote a debate (on which reasonable minds could differ) whether a specific statement (not presently identified) that is made or published in specific circumstances (also not presently identified) is inconsistent with the general and unqualified statements pleaded in paragraphs 17B and 18 of the 2FASC. In short, in my view, the order that is sought, if made, would promote uncertainty.
124. Thirdly, the respondents submitted that, given the nature of their operations, it would be costly and onerous, especially for GECS and GECA, to be subjected to an order in this form. The respondents submitted that, on a daily basis, GECS and GECA are required, through their employees, to explain the GECA Furniture Standard to licensees and applicants for certification, to apply the standard, and to explain the effects of GECA certification. They submitted that it would be necessary for them to pass a number of documents through their lawyers to ensure that proposed statements are not inconsistent with the statements pleaded in paragraphs 17B and 18 of the 2FASC, to review their currently published material for possibly or arguably inconsistent statements, and to monitor documents and statements from GBCA for changes in relation to the way that ratings are made by that organisation. I accept the general thrust of this submission. Whilst the extent to which such activities may be necessary is not clear on the evidence, I would expect that the respondents would act cautiously and prudently to ensure that that there was no risk of a breach of any order made by the Court. I accept that, if the order sought in paragraph 3(a) of the principal motion were to be made, the respondents would be required to carry out these steps to some extent and possibly to an extent that would subject them to great cost and inconvenience, which would not be adequately compensated by enforcement of an undertaking as to damages should Instyle ultimately fail in its claim for final relief in respect of the Corporate Express claim and the EPD claim. I reject Instyle’s submission to the contrary effect.
125. I have come to the conclusion that the balance of convenience lies in favour of refusing the relief that is sought in paragraph 3(a) of the principal motion. I have given consideration to whether an order, differently framed to overcome the lack of specificity to which I have referred, should be made. However, even if this were to be done, the balance of convenience would still lie in favour of refusing relief, given the real dispute between the parties as to how the GECA Furniture Standard should be interpreted and applied.
126. I should add that in oral and written submissions directed to the form of the order sought in paragraph 3(a) of the principal motion (which, as I have noted, refers in terms to paragraphs 17B and 18 of the 2FASC), Instyle submitted that reference to sections 3.1, 3.4, 4, 5, and 6 of the GECA Furniture Standard could be “added” to paragraph 17B for the purposes of the interlocutory injunction it seeks. This, however, suggests an attempted reformulation of Instyle’s case as now pleaded in the 2FASC. I do not propose to consider the present application for the injunctive relief sought in paragraph 3(a) of the principal motion on any basis other than with respect to the claims now formulated in the 2FASC.
127. The submissions of the parties in respect of the relief sought in paragraph 3(a) of the principal motion focused on the interpretation and application of the GECA Furniture Standard, which finds specific reference in paragraph 17B of the 2FASC. Paragraph 18 of the 2FASC focuses on the product scores under the relevant Green Star Rating Tool of upholstered and white furniture that has also been certified by GECA. I have given consideration to whether an order should be made which, corrected for form to overcome the problem with respect to lack of specificity to which I have referred, relates only to the representations pleaded in paragraph 18 of the 2FASC. I have come to the conclusion that no such order should be made. I have already referred to the evidence on which Instyle relies in this regard. The two representations relied upon by Instyle as having been made by the respondents both relate to periods of time well before the making and publication by GBCA of the “technical clarification” which, on the evidence, seems to have modified the application of the relevant Green Star Rating Tool. It is this modified application of the relevant Green Star Rating Tool that, on the evidence, constitutes the foundation for the matters now pleaded in paragraph 18 of the 2FASC. Instyle has adduced no evidence that the two representations it relies upon misrepresented the proper application of the relevant Green Star Rating Tool at the time either of those representations was made.
128. Although only advanced faintly by Instyle, I should say something about its claim to the relief sought in paragraph 3(b) of the principal motion. It is to be noted immediately that the order sought in that form is considerably broader than the order sought in paragraph 3(a). The order sought in paragraph 3(b) is unconfined as to any particular matter set out in the GECA Furniture Standard or any particular matter in the many GBCA publications that are noted in the paragraph, other than that the matter must relate to the calculation of product scores with respect to certified products falling within various categories of products in the GECA Furniture Standard. Perhaps more importantly, the order that is sought is not confined to any matter pleaded in the 2FASC as constituting conduct in contravention of the TPA or FTA. The proposed form of the order also suffers the same defect with respect to lack of specificity as the order sought in paragraph 3(a). Once again, an order in that form would promote uncertainty, particularly having regard to the somewhat indeterminate range of matters dealt with in paragraph 3(b). In my view, the making of the order sought in paragraph 3(b) of the principal motion would be unwarranted and oppressive. I refuse to grant that relief.

The order sought in paragraph 4 of the principal motion

129. Paragraph 4 of the principal motion seeks an order in the following terms:

That each of the First Respondent, Second Respondent and Third Respondent be restrained until further order of the Court from making or publishing any statement to any person directly or indirectly involved in the manufacture, specification, supply or acquisition of furniture or textiles to the effect that:

(a) The Applicant has made misleading statements about the environmental performance of the Applicant’s products;

(b) The Applicant has made claims to [GECS] about the environmental performance of its textiles;

(c) [GECS] has made requests to the Applicant for the Applicant to supply to [GECS] independent technical evidence to support those claims;

(d) The Applicant has not been able to supply the independent technical evidence requested.

130. The proposed order relates to conduct referable to the Market Advisories claim.
131. On or about 15 October 2005 Instyle obtained a Preliminary Verification Report from AELA giving an initial assessment as to whether certain textiles identified in the report as “LIFE Textiles: Balance, Source, Atlas, Planet” were likely to comply with the criteria in Standard AELA 19-2004-Textiles Products. This standard is not in evidence.
132. Under the heading “Status of this Document”, the report included the following:

Formal certification of a product to the Australian Ecolabel Program is declared after a verification process which is yet to be commissioned. As a result, the conclusions in this report should only be considered preliminary and subject to a formal verification process over the next 12 months.

133. Under the heading “Results of the Preliminary Assessment”, the report included the following:

The preliminary conclusions are that for the following products there does not appear to be any barrier during the preliminary analysis that would restrict conformance to the requirements of the Textile Products Standard. The information however that has been provided to date is very preliminary and primarily relates to the core specifications of Instyle rather than any actual production performance data. [Emphasis in original]

134. The report set out certain preliminary findings concerning expected compliance with certain environmental performance criteria in the standard but noted that certain evidence was required in order to determine compliance with the requirements of the standard.
135. Under the heading “4.0 Compliance Testing”, the following statements were included:

Conformance with this standard shall be demonstrated by undertaking an assessment to the above criteria by an approved assessor following the certification and verification procedures detailed in the Australian Environmental Labelling Association Documented Quality Management System which generally follows the environmental auditing requirements of ISO 14 010 and 14 011.

.... New testing shall be undertaken by a laboratory accredited by the National Association of Testing Authorities... or similar overseas accreditation to carry out the relevant tests and/or documentation detailing environmental performance against the key indicators for this standard.

...If testing results or environmental auditing results are not available, and/or there is not sufficient data to establish full compliance to the criteria required by this standard then certification cannot be awarded.

136. The evidence does not show whether Instyle took any further steps directed to obtaining an assessment of the identified fabrics by an approved assessor.
137. By a document dated 24 February 2009 (apparently issued under Instyle’s letterhead and signed by Mr Fitzsimons), the following statements were made:

To whom it may concern;

Re: Compliance to GECA Furniture and Fittings Standard (GECA 28-2006)

I hereby declare that the following Instyle products: ATLAS, SOURCE, CLASSIC, GLIDE, NELSON, WRAP, CODE, MONUMENT, PLAZA, DIVINE and KAB – comply with Section 3.3 of the GECA Furniture and Fittings Standard.

Our manufacturers have supplied us with statutory declarations stating the following substances have not been used during production of the above products... [The document then identifies various substances.]

138. On 11 September 2009 Mr Fitzsimons sent an email to Don Moreton, the Supply Chain Manager of a business trading as Gregory Commercial Furniture. Amongst other things the email stated:

There is also a list attached of Instyle fabrics that are compliant with the GECA textile standard and meet the GECA Furniture Section 3.3 Hazardous Substances requirement. As you can see there are a significant number of our fabrics that are compliant.

139. The attachment sets out approximately 53 products and identifies whether they are said to be compliant with the GECA Textiles Standard or section 3.3 of the GECA Furniture Standard, or both. As I have already noted, paragraph 19 of the 2FASC pleads that Instyle’s fabrics have not been assessed for compliance with the GECA Textiles Standard; nor have they been certified by the Good Environmental Choice Label, the EU Flower Label or the Nordic Swan Label. To the extent that there may be a difference, it is not suggested by Instyle that any of its fabrics have been certified as conforming to the GECA Furniture Standard. This email subsequently came into Mr Johnson’s possession.
140. On a date not given in evidence, GECS published certain statements on its website to which Instyle took objection. Those statements included the following:

News Related to Textile Use in Certified Furniture and Fittings

Environmental Assurance has become aware that certain licensees have been receiving materials from product suppliers which purport to confirm compliance by certain fabrics with Section 3.3 – Hazardous Materials of the GECA No 28-2006 Furniture and Fittings Standard.

The mere statement to licensees by a product supplier that certain materials in their products are compliant does not, of itself, confirm compliance with the GECA Furniture and Fittings Standard. It is still necessary for Environmental Assurance to go through the verification and assessment process.

To date, Environmental Assurance has not received evidence of compliance that is acceptable under the certification framework for any of the Instyle textiles. Instyle has not been able to substantiate its claims to Environmental Assurance, nor has the company provided any independent compliance evidence apart from self declarations by them or their supply chain to Environmental Assurance.

141. Instyle’s solicitors, Fraser Clancy, wrote to Kennedys, the solicitors for GECS and Mr Johnson, on 18 September 2009 requesting that GECS remove the statements from its website. By letter dated 21 September 2009 Kennedys responded. After taking issue with a number of matters raised in the Fraser Clancy letter, Kennedys advised that “our client has removed the Statements from its website for the time being”.
142. Thereafter the Market Advisories were issued.
143. The Long Form Market Advisory was as follows:

Dear Manufacturer of Environmental Choice Australia Certified Products.
Please find attached a market advisory from Environmental Assurance.
MARKET ADVISORY – MANUFACTURER PRACTICE ALERT
AN ADVISORY ON THE ACTIONS OF INSTYLE FABRICS AND
RELATED COMPANIES
CLAIMS OF THE ENVIRONMENTAL FITNESS OF PURPOSE OF
THEIR TEXTILES

1. Environmental Assurance as the appointed independent auditor for the Environmental Choice Australia Mark has become aware that Environmental Choice Mark licensees have been receiving materials from Australian Textile Marketer and Supplier Instyle Fabrics and associated companies which purport to confirm compliance by certain fabrics with Section 3.3 – Hazardous Materials of the GECA No 28-2006 Furniture and Fittings Standard and that such products can be used when upholstering compliant furniture.

2. The mere statement/self declaration to licensees by a product supplier that certain materials in their products are compliant does not, of itself, confirm compliance with the GECA Furniture and Fittings Standard. It is still necessary for Environmental Assurance to go through the verification and assessment process. Environmental Assurance has found extensive exaggeration and misinformation by manufacturers of the environmental performance of their products.

3. [sic]

4. To date, Environmental Assurance has not received evidence of compliance that is acceptable under the certification framework for any of the Instyle textiles or any of it’s [sic] associated companies. Instyle has not been able to substantiate its claims to Environmental Assurance, nor has the company provided any independent compliance evidence apart from self declarations by them or their supply chain to Environmental Assurance. It is critical for manufacturers to understand that certification as to the environmental preference of fabrics, and the ability to use the Environmental Choice Mark for certified furniture manufacturers, cannot occur for products without providing such independent technical evidence.

5. Environmental Assurance is concerned that these actions has [sic] been extensively perpetrated by Instyle fabrics and warns manufacturers to request an Environmental Choice Australia mark licence or a summary audit report from Environmental Assurance confirming that the textile has been independently tested prior to including these textiles in compliant product.

6. Environmental Assurance asks all manufacturers of certified products to make available all such circulars, advice, correspondence of materials from Instyle or associated companies on this topic in the last 6 months to Environmental Assurance and may consider conciliatory steps for manufacturers that have been tricked or misled by this action of Instyle.

7. We welcome any information of contacts you have had with Instyle or it’s [sic] associated companies on matters related to this notice as we are currently assessing the best way to restrain this misinformation and maintaining the integrity and support for Environmental Choice certified products. Environmental Assurance has already sought suitable independent technical evidence from Instyle related to the compliance of Instyle’s fabrics and inadequate material has been provided or the matter has not progressed [sic] by Instyle.

8. As a result of the above actions by Instyle fabrics Environmental Assurance and Good Environmental Choice Australia (GECA) are disappointed that Instyle continue to make allegations against them in the marketplace that are misconceived. Instyle have also taken action against the founder of the national program Mr Petar Johnson as a personal attack while he was undertaking duties on behalf of the program. Environmental Assurance and GECA will vigorously defend themselves and are considering what other action they may be able to take against Instyle for any damage suffered by its conduct.

9. The Environmental Choice Australia Mark is recognised both domestically and internationally as a leading provider of environmental labelling and recognition for products with environmental preference. On the basis of positive environmental discrimination the program will encounter opposition from product manufacturers which are [sic] may not be able to provide evidence of product conformity. We encourage manufacturers and service providers to continue in their efforts to deliver well designed and rigorously tested environmentally preferable products to the Australian market.
Contact:
Mr Chris Marshall
Business Manager
Environmental Assurance
Ph: 02 6281 5282
E-mail: [e-mail]

144. The evidence does not establish the extent to which the Long Form Market Advisory was published. The evidence suggests, however, that it was sent to multiple recipients.
145. The Short Form Market Advisory was as follows:

MARKET ADVISORY – MANUFACTURER PRACTICE ALERT

AN ADVISORY ON UNFOUNDED CLAIMS OF THE ENVIRONMENTAL FITNESS OF PURPOSE OF TEXTILES

1. Environmental Assurance, as the appointed independent auditor for the Environmental Choice Australia Mark, has become aware that Environmental Choice Mark licensees are receiving materials from Australian Textile Marketer and Supplier Instyle Fabrics and associated companies (Instyle) which purport to confirm compliance by certain Instyle textiles with the GECA No 28-2006 Furniture and Fittings Standard, including Section 3.3 – Hazardous Materials, Section 3.1 – Fitness for Purpose and Section 4 – Environment, and that such products can be used when upholstering compliant furniture.
   
2. A statement by a product supplier that some of their products meet one or more of the GECA Standards does not, of itself, confirm that those products comply with the relevant GECA Standard. Part of the value in this program is that self-declarations by a product supplier or manufacturer are not, by themselves acceptable. It is still necessary for Environmental Assurance to go through the verification and assessment process. It is critical for manufacturers to understand that certification as to the environmental preference of textiles, and the ability to use the Environmental Choice Mark for certified furniture manufacturers, cannot occur for products without this verification process which involves the independent review of the product supplier’s processes. In some past cases of self-declaration, Environmental Assurance has found that manufacturer’s [sic] claims concerning the environmental performance and characteristics of their products are unfounded or inaccurate.
   
3. Instyle textiles are not currently certified under GECA’s standards nor is there any current request by Instyle for assessment or certification of its textiles.
   
4. Accordingly, Environmental Assurance wants to reinforce the need for manufacturers to request an Environmental Choice Australia mark licence or a summary audit report from Environmental Assurance to ensure that the textile has been independently tested and certified as compliant with the GECA Standards, prior to being included in any compliant products.
   
5. Environmental Assurance is disappointed that Instyle continues to make allegations against it in the marketplace that are misconceived. Instyle has also taken action against the founder of the national program, Mr Petar Johnson. Environmental Assurance and Mr Johnson will vigorously defend themselves and are considering what other action they may be able to take against Instyle for any damage suffered by its conduct.
   
6. The Environmental Choice Australia Mark is recognised both domestically and internationally as a leading provider of environmental labelling and recognition for products with environmental preference. On the basis of positive environmental discrimination the program will encounter opposition from product manufacturers which are [sic] may not be able to provide evidence of product conformity. We encourage manufacturers and service providers to continue in their efforts to deliver well designed and rigorously tested environmentally preferable products to the Australian market.
   
146. The evidence does not establish the extent to which the Short Form Market Advisory was published. Once again, the evidence suggests it was sent to multiple recipients.
147. The respondents say that the Market Advisories were issued as a response to the information that had been received (to which I have referred above) concerning Instyle’s statements about the compliance of its fabrics with the GECA Textiles Standard and section 3.3 of the GECA Furniture Standard. The respondents submit that the making of these statements by Instyle provides the context in which the issuing of the Market Advisories should be considered. In the course of submissions, senior counsel appearing for the respondents indicated that it was the respondents’ intention to seek leave to file a cross-claim in the proceeding relating to the representations that Instyle had made concerning this asserted compliance.
148. For its part, Instyle says that, following the issue of the Market Advisories, it has received requests for information from specifiers and buyers of its products (such as the Queensland government) as to whether those products can be specified and used on GECA certified furniture.
149. As will be apparent from the summary in paragraph 45 above of Instyle’s allegations made with respect to the Market Advisories claim, Instyle alleges that a number of representations were made in the Market Advisories. These representations fall into one or other of two broad groups.
150. The first group concerns representations about the ability to use textiles (including Instyle’s textiles) with GECA certified furniture. In essence, Instyle alleges that the Long Form Market Advisory and the Short Form Market Advisory each represented that only textiles that have been independently tested and certified as being compliant with the GECA standards can be included in GECA certified furniture (which I would understand to mean furniture that has been certified as being compliant with the GECA Furniture Standard or for which such certification has been or is to be sought). This group of allegations therefore focuses, once again, on the interpretation and application of the GECA Furniture Standard, particularly as to procedures for compliance testing and whether self-certification is permitted.
151. The second group concerns representations about particular conduct or activities by Instyle. In essence Instyle alleges that the Long Form Market Advisory represented that Instyle had made claims to GECS about the environmental performance of Instyle’s fabrics but had either failed to provide independent technical evidence or had provided inadequate technical evidence to substantiate its claims, despite GECS having made requests to Instyle for that evidence. Instyle alleges that the Long Form Market Advisory also represented that GECS had found that Instyle had misled manufacturers (intentionally or otherwise) or extensively exaggerated to manufacturers and misinformed them about the environmental performance of Instyle’s products.
152. The respondents disputed Instyle’s reading of the Long Form Market Advisory as it related to this second group of representations. First, the respondents submitted that the reference to “manufacturers” in the context of the statement that Environmental Assurance (GECS) had found extensive exaggeration and misinformation by manufacturers of the environmental performance of their products, could not be a reference to Instyle, which was not a manufacturer but a marketer and supplier of fabrics.
153. Secondly, the respondents called in aid the history of Instyle’s dealings with AELA in 2005 leading to the issue of the Preliminary Verification Report with respect to Instyle’s LIFE Textiles in about 15 December 2005. The respondents submitted that the statement in the Long Form Market Advisory to the effect that Environmental Assurance (GECS) had not received evidence of acceptable compliance with respect to Instyle’s products is to be read as referring to “the incomplete verification process started with the preliminary assessment”.
154. Thirdly, the respondents submitted that the statement in the Long Form Market Advisory to the effect that Instyle had not been able to substantiate its claims to Environmental Assurance (GECS) and had not provided independent compliance evidence refers to the claims that Instyle had made to others about the compliance of its fabrics with the GECA Furniture Standard and the GECA Textiles Standard. It is noteworthy, however, that the respondents’ submissions did not deal specifically with the further statement in the Long Form Market Advisory that Environmental Assurance (GECS) had already sought suitable independent technical evidence from Instyle relating to the compliance of Instyle’s fabrics but that inadequate material had been provided or the matter had not been progressed by Instyle. Instyle submits that the respondents have never asked it to substantiate the environmental performance of its products and points to correspondence from the solicitors for GECS and Mr Johnson which acknowledges that GECS has not asked Instyle to substantiate its claims.
155. The issue that will be presented at the final hearing is not so much how the Market Advisories should be read but how “ordinary” or “reasonable” members of the class of persons who were the recipients of the Market Advisories, would read them: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45 at [99]- [103]. Whilst preliminary views can be formed about what the Market Advisories do convey, the evidence is incomplete. However, it is sufficient to note, once again, that the respondents have accepted that there is a serious question to be tried in the requisite sense. The real issue is, where does the balance of convenience lie and should the order sought in paragraph 4 of the principal motion be granted?
156. Instyle submits that the content of the Market Advisories, particularly as to the second group of representations, is inflammatory and baseless. It submits that, if not corrected, the Market Advisories may cause significant harm to Instyle. This submission was not developed. Indeed, Instyle has not sought to differentiate the loss or damage allegedly arising from the first group of representations from the loss or damage allegedly arising from the second group of representations. In written submissions, Instyle did advance a submission concerning the reputation of its managing director, Mr Fitzsimons, which Instyle sought to equate with its own reputation. Even if Instyle’s reputation could be equated with Mr Fitzsimons’ reputation (and, on the present evidence, it is doubtful that it can be), the evidence on which Instyle relied in this regard did not demonstrate any possible injury to Mr Fitzsimons’ reputation. However, having said this, I would accept that, if the Market Advisories are read as Instyle contends they should be read, then, if they are misleading or deceptive as alleged, they are capable of causing loss or damage to Instyle. It is unclear, however, whether the loss or damage would extend beyond the claim that Instyle’s fabrics have not been certified because of a misinterpretation or misapplication by GECS of the GECA Furniture Standard.
157. The respondents submitted that the orders sought in paragraph 4 of the principal motion, if made, would be a bar to their ability to express a view about Instyle’s conduct in the marketplace, particularly in circumstances where, as the respondents would have it, Instyle itself has engaged in conduct that is misleading or deceptive or likely to mislead or deceive. In this connection the respondents submit that the order as sought is not confined to past conduct.
158. The order sought in paragraph 4 of the principal motion is broad insofar as it seeks to restrain the respondents from making or publishing any statement, in the future, that Instyle has made misleading statements about the environmental performance of its products. In my view there is substance to the respondents’ submission that an order in that form, if made, could fetter, unjustifiably, legitimate comment by the respondents about future conduct by Instyle. It would, of course, be possible to limit, by appropriate words, the scope of the order to restrain a repetition of the specific past conduct of one or more of the respondents.
159. An important matter going to the balance of convenience is the fact that the respondents are prepared to proffer an undertaking to the Court with respect to the publication or republication of statements to the effect of those identified in paragraph 4 of the principal motion. Correspondence has passed between the parties in relation to this issue and also in relation to an appropriate form of undertaking to be given in lieu of the order sought in paragraph 5 of the principal motion (to which I shall come). The correspondence is inconclusive in the sense that no agreement has been reached between the parties as to the disposition of the principal motion insofar as it concerns the orders sought in paragraphs 4 and 5 of the principal motion. However, agreement seems to have been reached at least as to the appropriateness of the form of the following undertaking (as opposed to its sufficiency as interim relief in all the circumstances), which I understand the respondents are prepared to proffer:

Without any admission, Good Environmental Choice – Australia Ltd (“GECA”), Good Environmental Choice Services Pty Ltd trading as Environmental Assurance (“GECS”) and Petar Johnson each severally undertake to the Court:

1. not to publish or republish, other than for the purpose of these proceedings or any cross-claims;
   

(a) any statement which is to the effect of any one or more of the statements (“relevant statements”) set out in paragraphs (c) to (f) below except,

(b) to any person directly or indirectly involved in the manufacture, specification, supply or acquisition of furniture or textiles,

without providing to Instyle at least 3 business days prior to publication or republication of the statement a copy of the statement proposed to be made. The relevant statements are –

(c) Instyle has made misleading statements about the environmental performance of Instyle’s textiles;

(d) Instyle has made claims to Environmental Assurance about the environmental performance of its textiles;

(e) Environmental Assurance has asked Instyle to supply it with independent technical evidence to support environmental performance of its textiles;

(f) Instyle has not been able to supply the independent technical evidence requested ...

160. Subject to two matters to which I shall come, I am of the view that the balance of convenience favours the acceptance of an undertaking substantially in this form, rather than the making of the order sought in paragraph 4 of the principal motion. In my view such an undertaking will provide adequate interim protection for Instyle against either the publication or republication of the statements to which it takes exception or future statements to the same effect, whilst at the same time leaving open the possibility for the respondents to make legitimate comment in relation to any statements made or to be made by Instyle. I am conscious of the fact that, by accepting such an undertaking, the possibility remains for future disagreement between the parties, which may require a further application to the Court. However, the opposing positions of the parties have been canvassed extensively during the hearing of the principal motion in relation to past comments that have been made by them. I would expect that, with the benefit of this debate, the parties will bring to bear on their future conduct a commonsense, restrained and cautious approach concerning any future statements they may seek to make which touch upon or concern the issues raised in this proceeding. It is highly desirable that the proceeding not become unnecessarily encumbered with additional claims arising from future conduct which, with prudence and restraint on all sides, can be avoided.
161. The two matters to which I wish to refer are these: first, preferably the undertaking should be expressed to be subject to the further order of the Court, as this will make clear the interlocutory nature of the undertaking; secondly, as a condition of accepting the undertaking, the usual undertaking as to damages should be given. In this latter regard the respondents have submitted that any undertaking as to damages should be given not only by Instyle, but also by Mr Fitzsimons in light of the way that the respondents’ application for the security for costs has been dealt with. In my view that submission should be accepted.

The order sought in paragraph 5 of the principal motion

162. Paragraph 5 of the principal motion seeks an order in the following terms:

That the First Respondent forward to all recipients of the emails referred to in paragraph 50 of the Second Further Amended Statement of Claim a copy of order 4 together with a statement that the First Respondent retracts any statement in the Market Advisories respectively issued on 25 September, 2009 and 28 September, 2009 which suggest any of the following:

(a) The Applicant has made misleading statements about the environmental performance of the Applicant’s products; or

(b) The Applicant has made claims to [GECS] about the environmental performance of its textiles;

(c) [GECS] has made requests to the Applicant for the Applicant to supply to [GECS] independent technical evidence to support those claims;

(d) The Applicant has not been able to supply the independent technical evidence requested.

163. Once again, the proposed order relates to conduct referable to the Market Advisories claim.
164. As I have already noted, the order that is sought is not interlocutory in form and is plainly mandatory in character. I note that a similar kind of order is sought as final relief in paragraph 8 of the amended application. Both the order sought in paragraph 5 of the principal motion and the order sought in paragraph 8 of the amended application compel GECS to make a statement that it retracts statements that have been made in the Market Advisories. I have some real doubts whether it would be an appropriate exercise of discretion to compel a party to make such a statement. In an appropriate case, where final findings on liability have been made against a party, the proper course may be to make an order that compels that party to disclose the findings that have been made by the court. However, the orders sought in paragraph 5 of the principal motion and paragraph 8 of the amended application go further and reflect a state of affairs that simply does not exist. GECS does not retract the statements that have been made. Indeed, it defends them.
165. Moreover, the form of the order suggests that the statements that have been identified in the presently proposed order have been made wrongfully, at least by GECS. No such finding has been made and, in my view, no such finding could be made until after a final hearing when the Court has the benefit of all the evidence that bears upon Instyle’s claims in this regard, and the respondents’ full defence of them. Having said this I should say that, on the present evidence, there is substance to the case made by Instyle, quite apart from the respondents’ acceptance that there is a serious question to be tried in relation to the Market Advisories claim. On the present state of the evidence, some aspects of that claim appear stronger than others. However, I have no final view on the matter. To make such an order now, on the present evidence, would be premature. Such an order would, for practical purposes, determine the substance of the matters in issue in this regard. I am not in a position to do that.
166. There is an important related consideration. Even if it be assumed for the purposes of argument that, at the present time, I had a high level of assurance that, on a final hearing, Instyle would succeed on some part or parts of the Market Advisories claim, the full extent of Instyle’s likely ultimate success in respect of all its claims in that regard would be, nevertheless, uncertain. In that state of affairs it would be plainly inappropriate to make an order at an interlocutory stage that covered and addressed all of the statements to which the proposed order relates. It seems to me, however, that it would also be inappropriate to make an order at an interlocutory stage that addressed only those statements in respect of which, say, the hypothetical high level of assurance existed. This is because an order so limited would result in a publication that may, because of its own limited content, have the effect of suggesting the accuracy of other related statements that have been made, even though the accuracy of those related statements is disputed and remains to be decided. In short, it seems to me to be undesirable, in circumstances such as the present, to make orders that have the effect of dealing with matters of correction on a piecemeal basis, unless there are compelling reasons to do so. There are no compelling reasons why such a course, if otherwise appropriate, should be adopted in the present case.
167. The respondents have proffered an undertaking to publish to recipients of the Market Advisories a form of clarification with respect to some of the statements that were made. Instyle has submitted that any publication along these lines would be more of “a marketing attempt” by the respondents rather than action taken to correct the Market Advisories. I leave aside any consideration of whether that is truly the respondents’ motive in proffering such an undertaking. Nevertheless, it seems to me to be appropriate, in considering the balance of convenience, that, in a similar vein to the considerations I have discussed above, I take into account the fact that the proffered undertaking is in respect of a further publication that is, at best, a partial response to Instyle’s claims and which may serve to repeat or to reinforce other statements that are alleged to constitute conduct in contravention of the TPA and FTA, as pleaded in the 2FASC. In all the circumstances I do not think that it would be appropriate to accept the proffered undertaking in the present case as a form of interim relief.
168. Taking all these considerations into account, I am of the view that the balance of convenience lies against granting the relief sought in paragraph 5 of the principal motion.

THE DETERMINATION OF A SEPARATE QUESTION AND RELATED ISSUES

169. Paragraphs 6, 7 and 8 of the principal motion advance various formulations of a question that Instyle seeks to have determined separately from and before other questions and issues in the proceeding. Instyle advanced considerations of efficiency and convenience (including the possibility that the determination of such a question would promote settlement) and the prospect that, ultimately, costs might be saved, as factors in support of its application.
170. The respondents opposed the making of any such order. They submitted that none of the formulations of the proposed separate question is likely to facilitate the quicker and cheaper resolution of the proceeding, or is likely to substantially narrow the matters at issue in the ultimate hearing, or is likely to lead to either a shortening of the hearing or disposal of the action, or to contribute to the settlement of the litigation.
171. I am mindful of the fact that the respondents have indicated that they propose to seek leave to file a cross-claim in this proceeding seeking relief against Instyle in relation to the conduct that the respondents say prompted the issuing of the Market Advisories. In my view it would be premature to decide this part of the principal motion before the respondents’ foreshadowed application is a reality and has been dealt with. However the matter should not be left in abeyance. Directions should be made concerning the filing of any cross-claim and pleadings subsequent thereto. Hopefully the question of leave can be dealt with by consent. If not, directions will need to be made for the hearing of an application for leave. In the meantime, the application for the orders sought in paragraphs 6, 7 and 8 of the principal motion should be adjourned to enable these steps to be completed. Once the full dimensions of the controversy between the parties are fixed, I will, if necessary, hear the parties further on whether, and if so what, orders should be made with respect to the hearing of a separate question.
172. Paragraph 9 of the principal motion seeks a postponement of further discovery in relation to the issues raised by certain nominated paragraphs in the 2FASC. The determination of this part of the motion will likely follow the fate of paragraphs 6, 7 and 8 of the principal motion. Accordingly, the application for the orders sought in paragraph 9 of the principal motion should also be adjourned for further consideration.

THE OTHER NOTICES OF MOTION

173. As indicated earlier in these reasons, there remains for me to give reasons for setting aside paragraph 3 of the subpoena issued at the request of GECA and addressed to the Proper Officer of Contemporary Leathers Pty Ltd, and to determine the question of costs relating to Instyle’s motion to set aside that paragraph of the subpoena and the respondents’ respective motions to set aside certain paragraphs of the notices to produce served on them.
174. Paragraph 3 of the subpoena was in the following terms:

Any other emails or correspondence sent by Contemporary Leathers Pty Ltd (in the period 1 March 2009 to date) to any person or company involved in the manufacture, specification, supply or acquisition of furniture or textiles which contains a representation from Contemporary Leathers to the effect that, in relation to one or more of Contemporary Leathers’ Pty Ltd and/or Instyle’s products:

3.1 That Contemporary Leathers Pty Ltd and/or Instyle has a GECA Compliance Certificate for that product or textile; and/or

3.2 That the product, textiles or fabric complies with any of the GECA 19-2007 Textiles Standard, the GECA Furniture Standard, or section 3.3 of the GECA Furniture Standard.

175. It is clear that a lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103. The test of apparent relevance is whether the documents are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927; Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [10].
176. Plainly paragraph 3 of the subpoena was directed, in terms, to the production of documents that contain representations made by Contemporary Leathers Pty Ltd, notwithstanding that those representations may have been about Instyle’s products. Contemporary Leathers Pty Ltd is not a party to this proceeding. There is currently no pleaded case or application for relief against Instyle for misrepresentation, let alone one based on any representation made by Contemporary Leathers Pty Ltd for or on behalf of Instyle. Furthermore, any representation made by Contemporary Leathers Pty Ltd about its own products is completely divorced from any issue in this proceeding. It was my view that any documents produced in answer to paragraph 3 of the subpoena would not reasonably be likely to add, in the end, in some way or other, to the relevant evidence on the hearing of the principal motion.
177. As to the question of costs, the subpoena and the notices to produce were served ostensibly for the purpose of obtaining evidence to be used in respect of the hearing of the principal motion. In a real sense the determination of the respective notices of motion directed to setting aside paragraph 3 of the subpoena and the various identified paragraphs in the notices to produce was an incident of the hearing of the principal motion. It would be difficult and inconvenient to attempt to isolate the time spent hearing the argument on each of these notices of motion from the time spent hearing the argument on the principal motion, particularly as the adjectival relevance of the documents sought to be produced required explanation in the context of the issues that needed to be articulated in any event for the purposes of hearing the principal motion.
178. In these circumstances the appropriate course is to make orders providing for the costs of and incidental to preparing and filing these notices of motion and the affidavits in support of them, but to leave any costs associated with the hearing of the notices of motion to fall as costs of and incidental to the principal motion. To this end: (a) GECA should pay the costs of and incidental to the preparation and filing of Instyle’s notice of motion filed on 20 November 2009 seeking to set aside paragraph 3 of the subpoena issued on 9 November 2009 at GECA’s request, and of the affidavit(s) in support of that notice of motion; (b) Instyle should pay GECS’ and Mr Johnson’s costs of and incidental to the preparation and filing of their amended notice of motion filed on 9 December 2009 seeking to set aside the various paragraphs of the notice to produce dated 1 December 2009 that was served on them, and of the affidavit(s) in support of that notice of motion, and (c) Instyle should pay GECA’s costs of and incidental to the preparation and filing of its notice of motion filed on 8 December 2009 seeking to set aside the various paragraphs of the notice to produce dated 1 December 2009 that was served on it, and of the affidavit(s) in support of that notice of motion.

DISPOSITION

179. The parties should endeavour to agree on the form of orders and directions that will formalise:

(a) the granting of leave to file the amended application and the 2FASC;

(b) the filing of subsequent and additional pleadings in the proceeding (including, if necessary, the making of any application for leave in that regard);

(c) the giving of the relevant undertaking by the respondents and the giving, by way of cross-undertaking, of the usual undertaking as to damages;

(d) costs (to the extent that I have presently determined them);

(e) the adjournment of the balance of the principal motion, including the question of costs not yet determined, in accordance with these reasons.

180. At the present time I will simply make an order that, by no later than 4.00pm on 12 February 2010, the parties provide to my Associate a draft of the orders and directions that will formalise the matters identified in paragraph 179 of these reasons for judgment. Thereafter a date will be appointed by arrangement with the parties for the making in court of orders and directions and for the giving of undertakings, and to attend to any other matter incidental thereto.
     

I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated: 5 February 2010