Talley's Group Limited v Biomex Trustees Limited [2021] NZHC 2922 (29 October 2021)

Last Updated: 9 November 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-773 [2021] NZHC 2922

BETWEEN	TALLEY’S GROUP LIMITED Plaintiff
AND	BIOMEX TRUSTEES LIMITED First Defendant MACLAB (NZ) LIMITED Second Defendant JB BROADBENT NOMINEES PTY LIMITED Third Defendant McFARLANE MARKETING (AUST) PTY LIMITED Fourth Defendant cont/...

Hearing:	17 June 2021
Counsel:	RJ Hollyman QC and N Lawrence for the Plaintiff Z Kennedy and O Skilton for the Defendants
Judgment:	29 October 2021

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 29 October 2021 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:

Solutions Law Office, Nelson MinterEllisonRuddWatts, Auckland

N Lawrence, Bankside Chambers, Auckland Z Kennedy, Mills Lane, Auckland

TALLEY’S GROUP LTD v BIOMEX TRUSTEES LTD & ORS [2021] NZHC 2922 [29 October 2021]

MACLAB AUSTRALIA PTY LIMITED
Fifth Defendant

JAMES MEREDYTH BROADBENT
Sixth Defendant

ANDREW CHRISTOPHER BROADBENT
Seventh Defendant

WILLIAM RAMSDEN BROADBENT
Eighth Defendant

Introduction

• [1] Both the plaintiff and the defendants apply for further and better discovery orders. The plaintiff also seeks a review of claims of confidentiality made by the defendants in respect of certain documents included in their discovery.

• [2] During the hearing, the first part of the plaintiff’s application for further and better discovery resolved with the defendants agreeing to swear a further affidavit confirming that all documents falling within the categories set out in the schedule to the plaintiff’s amended application dated 18 December 2020 have been discovered. Part of the plaintiff’s application is therefore disposed of on the basis that such an affidavit is to be filed and served within two weeks of this decision, if the plaintiff has not already done so.

• [3] The two remaining matters are the second part of the plaintiff’s application, namely the review of the claims to confidentiality, and the defendants’ application for further and better discovery.

• [4] I consider the defendants’ application for further and better discovery first. Consideration of that application requires consideration of the discovery context in these proceedings. This context provides a backdrop against which the claims to confidentiality in respect of specific documents can then be separately assessed.

Preliminary procedural issue

• [5] The hearing of this matter was originally scheduled for 2 March 2021 but was adjourned to 17 June 2021 as a result of the unavailability of counsel. Just prior to the date of the original hearing the defendants filed an amended application together with further affidavits in support. Leave is required for the filing of the amended application and further affidavits.

• [6] The plaintiff took no issue with the filing of the amended application or further affidavits. As the plaintiff has had time to consider and respond, leave is granted for the further documents to be filed.

Substantive dispute

• [7] The substantive dispute arises out of negotiations which began in late 2013 and led to the entry into an agreement for the procurement and supply of mussels by Talley’s Group Ltd (“TGL”) dated 12 March 2014 (“2014 Agreement”). The defendants were to process the mussels into mussel powder used in the nutraceutical industry.

• [8] The relevant allegations are set out by Associate Judge Andrew in an earlier interlocutory decision in relation to particulars. The extract below records that the evidence TGL refers to is disputed but it is useful to set out the key paragraphs here to provide context for considering the discovery applications:¹
  • [5] Schedule 3 of the Agreement included the following clauses, which are central to TGL’s claim:

(a) Clause 13

... Talleys shall receive a monthly royalty payment equal to five per cent of Maclab’s gross revenue in each calendar month. ...

(b) Clause 18

... Maclab shall transfer to Talleys five per cent of the issued capital (ranking equally in all respects) in an entity to be established (which may, for the avoidance of doubt, include a limited partnership) then holding substantially the assets held by Maclab as at the date of this Agreement (including all sales contracts, equipment, intellectual property rights and other assets reasonably required to operate the Maclab Group business) (the “New Entity”) on the basis which fairly represents a 95 per cent/five per cent business relationship ...

• [6] The defendants say that to meet their obligations under cl 18 of the Agreement, a unit trust called Maclab (NZ) Unit Trust (Trust) was formed on 9 November 2016. The first defendant then transferred its assets as at 12 March 2017 to the Trust. The second defendant is the trustee of the Trust. Further, the defendants say that in May 2017, five per cent of the units in the Trust were issued to TGL. Since 23 April 2019, TGL is also said to have owned five per cent of the shares in the second defendant.
• [7] The affidavit of Mr Milan Talley, for the plaintiff, sets out the key events that Talleys rely upon in support of its claim. The defendants have not responded to it, and dispute generally its relevance and admissibility. However, while I accept the evidence is disputed, the affidavit does provide some assistance at this interlocutory stage in understanding the matters in dispute (also bearing in mind the issue here is one of particulars).

¹ Talleys Group Ltd v Biomex Trustees Ltd [2020] NZHC 591.

• [8] The salient points of Mr Milan Talley’s affidavit are as follows:

(a) In 2013, TGL was approached by the sixth, seventh and eighth defendants (the Broadbents) with a proposal for TGL to become a business partner in the Maclab business operation, and there was a key meeting in Nelson in October 2013;

(b) the Broadbents wanted TGL to gain a stake in the Maclab business, to improve their operation and better fulfil their supply obligations;

(c) they had experienced a substantial increase in demand and needed TGL to ensure they could keep up;

(d) the Maclab business was structured across the first, third and fifth defendants (all controlled by the Broadbents), but they told TGL that if they invested with them (as TGL did) then they would re-structure the business to run everything via the New Zealand company. This is key to TGL’s complaint because, as it claims, this did not happen;

(e) at meetings in November 2013, the Broadbents made it clear that they wanted TGL to take over the mussel farming operation (as it did) as part of the arrangements and a memorandum of understanding (MOU) was signed;

(f) the MOU provided for TGL’s purchase of operational assets in MacLab, and an agreement to supply mussels. TGL was to receive a royalty payment of five per cent of Maclab’s total revenue, as well as five per cent of the issued capital in the Maclab business (to be re-structured as previously indicated); and

(g) the parties later entered into the Agreement, signed as part of an agreement for sale and purchase of assets – it contains cls 13 and 18 as set out at [5] above.

• [9] TGL says that contrary to these obligations (as set out in the Agreement):

(a) Maclab established a unit trust (rather than a company or similar entity) as the New Entity (referred to in the Agreement) despite TGL’s objections. TGL’s main concern, as set out in the pleading, was that the terms of the relevant trust deed did not provide protections for TGL such as those that would be available if the New Entity were a company;

(b) the Trust did not receive all of the assets of the Maclab Group business, and the Broadbents did not re-structure the business to go through the Trust;

(c) the assets that were transferred were subject to a debt back so that their value would be netted out of the Trust; and

(d) the five per cent royalties were not (and are yet to be) paid in accordance with cl 13 of the Agreement, and Maclab has refused to allow TGL to audit the accounts to check what was included.

• [9] The defendants in response counterclaim that the plaintiff breached the product grading system agreement with the defendants, seeking damages of $3,407,149 (or such other sum as the Court thinks fit) plus interest and costs.

• [10] The defendants further allege that the plaintiff breached the 2014 and 2017 Agreements by overcharging for the mussels sold, including by charging more than the prevailing net greenweight market price. The damages sought are still to be quantified.

Defendants’ application for further and better discovery

• [11] The defendants seek orders in their amended application requiring TGL:

(a) to apply keyword searches across all email accounts and databases in TGL’s control that may hold potentially relevant documents, with the keywords set out in Schedule A;

(b) to file and serve a supplementary affidavit complying with rr 8.15 and

8.16 of the High Court Rules 2016 by particularising the steps it has taken to search for potentially relevant documents, with the steps that the defendants propose ought to be taken set out at Schedule B;

(c) to list in the supplementary affidavit all documents in TGL’s control that either:

(i) are relevant following application of the keyword searches recorded in Schedule A; or

(ii) fall within the categories of documents recorded in Schedule C, namely:

1. all invoices between TGL and mussel growers between 1 January 2013 and 31 December 2018, irrespective of whether the mussels were ultimately supplied to MacLab; and

2. all agreements between TGL and mussel growers for the procurement and supply of mussels, term sheets, heads of agreement or other documents relating to mussel supply and/or purchase commitments over the relevant period, irrespective of whether the mussels were supplied to MacLab.

(d) to produce for inspection all further relevant documents in its control, within such period as the Court directs; and

(e) costs.

• [12] The orders are sought by the defendants on the basis that:

(a) TGL’s search for potentially relevant documents appears inadequate and is inadequately explained; and

(b) TGL has failed to disclose the relevant documents that would have been identified had a proper search been carried out and the categories of documents recorded in Schedule C.

Keywords

• [13] The list of 21 keywords set out in Schedule A to the defendants’ application includes the names of suppliers plus various combinations of “mussel”, “price”, “market price” and so forth.

• [14] The plaintiff in response filed evidence saying running the proposed keyword searches would result in tens of thousands if not hundreds of thousands of documents being required to be reviewed for discovery. The plaintiff did not provide evidence, however, of having run the keywords through its system so there were no actual numbers that could be relied upon.

• [15] At this stage the plaintiff has only discovered 280 documents. Given the matters in dispute are relatively broad and the relevant time period spans seven years this is a surprisingly small number of documents.
• [16] The defendants criticised the plaintiff’s affidavit of documents for not being sufficiently detailed on the steps taken to locate discoverable documents. The defendants’ own first list of documents set out the keywords that it had used when collecting together the relevant documents. The plaintiff, by contrast, has not done so.

• [17] Given the three causes of action included in the defendants’ counterclaim and the various aspects relating to pricing, in my view, the first step ought to be for the plaintiff to run the searches proposed. If after doing so the number of documents is found to be unmanageable, then further discussions should follow between the parties to modify the keywords to ensure that a relevant but not an unfairly onerous number of documents are located and discovered.

• [18] In the event that matters are not able to be agreed, leave is granted to the parties to come back to Court to apply for amended orders in respect of the keywords. Any such application is to be accompanied by evidence of the numbers of documents that each keyword collects and a proposed alternative list. I encourage the parties to cooperate as required by r 8.2 of the High Court Rules 2016 as further delay is not in either party’s interests.

Schedule C – Invoices

• [19] In addition to collecting the relevant documents through keyword searches, the defendants seek copies of all invoices between TGL and mussel growers between 1 January 2013 and 31 December 2018, irrespective of whether the mussels were ultimately supplied to MacLab.

• [20] The plaintiff says there are approximately 20,000 pages of invoices for this period and that requiring discovery of these documents would be disproportionate when the information can be provided otherwise.

• [21] The plaintiff has offered to provide access to a database described in Mr Kingston’s affidavit as an electronic shellfish payment database (“Database”). The Database records the prices at which mussels were sold over the whole of the period and to all suppliers. It appears that a reasonable preliminary step would be for access to this Database to be provided on discovery to the defendants. A snapshot of the

invoices which are the base documents for the information in the database could then be provided. This may then provide the defendants with sufficient comfort that the database can be relied on for the purposes of establishing market price.

• [22] Orders are made below on this basis.

Schedule C – Supplier Agreements

• [23] In addition, the defendants seek copies of all supplier agreements. They submit that these agreements are relevant as market price is determined not only by the actual price but also by the terms upon which supply is provided.

• [24] The plaintiff resists provision of these agreements on the basis, again, that it is disproportionate to the assistance they would provide. The plaintiff referred to the buying schedules that had already been included in the discovery and the database which records the pricing as referred to above. If there are terms however which modify the price through the operation of terms, for example, then they may be relevant.

• [25] There is evidence from the plaintiff that these agreements were largely proforma but the defendants submit that the evidence leaves room for question.

• [26] There is no evidence from the plaintiff as to the likely number of these agreements but it cannot be as many as for the invoices. These agreements are likely to be picked up by the keyword searches in any event.

• [27] The plaintiff has made no claim to confidentiality in these documents on the basis they contain commercially sensitive information.

• [28] In my view copies of the supplier agreements for the relevant time periods should therefore be provided to the defendants as part of discovery and an order is therefore included below.

Confidentiality restrictions

• [29] The defendants claim the following documents are confidential and restrict their disclosure:

(a) two valuation reports drafted by Tony Natoli of Hall Chadwick Forensic Accountants (“Natoli Reports”);

(b) the contract between MacLab (NZ) Ltd, McFarlane Marketing (Aust) Pty Ltd, Pharmalink Extracts Ltd and Pharmalink International Ltd (together, Pharmalink) dated 3 January 2017 (“Pharmalink Contract”);

(c) management accounts for the MacLab (NZ) Unit Trust;

(d) trial balances for MacLab (NZ) Unit Trust from 2017 to 2020;

(e) Pitcher Partners transfer pricing report dated 15 January 2019;

(f) JLL valuation report dated 29 April 2019; and

(g) Alexander Hayward valuation dated 30 April 2019.

• [30] The basis upon which these documents have been provided on discovery is that inspection is restricted to external counsel and independent experts instructed by the plaintiff on the following terms:

(a) Each external counsel and independent expert instructed by the plaintiff must provide a written undertaking to the defendants’ solicitors that the confidential documents and/or their contents, in whole or in part, will not be disclosed in any way to any other person. This includes the plaintiff, its personnel and agents.

(b) Upon provision of the undertakings, the defendants’ solicitors will provide copies of the confidential documents to the plaintiff’s external counsel.

(c) Any amendments to the undertakings can only be made by agreement in writing by the defendants or pursuant to an order made by the Court.

• [31] The plaintiff’s external counsel and expert have provided the required undertakings and so have been provided with copies of the documents referred to above (or at least some of them).

Legal principles applying to claims to confidentiality in discovery

• [32] Rule 8.15(2)(f) of the High Court Rules 2016 permits a discovering party to state in an affidavit of documents any restrictions proposed to protect the claimed confidentiality of any document. In addition, r 8.28(3) provides that a party may limit inspection of confidential documents to a person specified in the affidavit, subject to the restrictions imposed in the affidavit.

• [33] Rule 8.25 allows parties to challenge a claim to confidentiality made. A party may apply to the Court for an order either setting aside the claim to confidentiality or modifying it. A Judge may in response set aside, modify or dismiss the application or make any other order with respect to the documents under review that they think just.²

• [34] These rules set out the procedure by which confidentiality may be claimed or challenged, but they do not contain any criteria by which such a claim or challenge may be assessed.

• [35] Section 69 of the Evidence Act 2006 provides an overriding discretion in relation to confidential information and sets out criteria in relation to the exercise of that discretion. Kós J (as he then was) held in Vector Gas Contracts Ltd v Contact Energy Ltd that whilst it is clear that s 69 applies to discovery “it does so only where an identifiable public, rather than private, interest in protection applies.”³ His Honour went on to hold that the Court has long exercised an inherent power to control inspection to ensure the protection of confidential information, particularly confidential market pricing information.⁴

² High Court Rules 2016, r 8.25(3).

³ Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [31].

⁴ At [32], referring to T D Haulage Ltd v M K Hunt Foundation Ltd [1986] NZHC 258; (1986) 1 PRNZ 668 (HC).

• [36] In Intercity Group (NZ) Ltd v Nakedbus NZ Ltd, Asher J similarly held that s 69 applied to the discovery process, while again recognising that the weighing of the public interest in s 69 is not the same as the balancing exercise that is required in respect of disclosure between parties in a civil proceedings.⁵ Asher J considered however that some of the criteria listed in s 69(3) are relevant to discovery and that the approach to confidentiality issues at common law was not inconsistent with the s 69 criteria.

• [37] In Payment Express Ltd v Paymark Ltd, Gault J followed a similar approach, beginning with the relevant High Court Rules before considering the relevant criteria in s 69 of the Evidence Act.⁶

• [38] Both Intercity and Payment Express referred to Port Nelson Ltd v Commerce Commission⁷ as the leading New Zealand authority on confidentiality arising in discovery. In Payment Express Gault J commented that Port Nelson was decided on the basis of the previous High Court Rules when confidentiality was not expressly recognised as a ground for resisting inspection. His Honour further noted that there is no longer an equivalent to r 312, which provided that an order for non-disclosure could only be made when the Court was satisfied that such an order was “necessary”.⁸ Gault J however considered that the balancing exercise described in Port Nelson was still relevant: the interests of justice in ensuring that a party is able to prepare and present its case must be balanced against the interests of the other party in safeguarding its confidential information in a competitive market.⁹ His Honour further relied on British Markitex Ltd v Johnston, where Wylie J adopted a similar approach, holding that the balancing exercise turns on the facts of the case in question.¹⁰

• [39] The approach adopted in Payment Express is essentially a two-stage approach. First there is the threshold question of whether the document is confidential; and second there is the balancing act in relation to prejudice.¹¹ In Port Nelson the Court

⁵ Intercity Group (NZ) Ltd v Nakedbus BZ Ltd [2013] NZHC 2261 at [16]–[18].

⁶ Payment Express Ltd v Paymark Ltd [2019] NZHC 2027 at [14]–[15].

⁷ Port Nelson Ltd v Commerce Commission (1994) 7 PRNZ 344 (CA).

⁸ Payment Express Ltd v Paymark Ltd, above n 6, at [18].

⁹ At [19], referring to Port Nelson, above n 7, at 348.

¹⁰ British Markitex Ltd v Johnston [1987] NZHC 248; (1987) 2 PRNZ 535 (HC) at 543.

¹¹ Payment Express Ltd v Paymark Ltd, above n 6, at [21].

held that a proper foundation must be laid out for a claim of confidentiality in respect of each document alleged to be confidential.¹²

• [40] I adopt the two-stage approach described in Payment Express below, considering:

(1) whether the document is confidential; and

(2) whether the balancing exercise in relation to respective prejudices weighs more heavily in favour of upholding the confidentiality restrictions or open disclosure.

• [41] The onus will be on the party claiming confidentiality to establish that each of the documents is confidential. Gault J considered in Payment Express that once confidentiality is established “to the extent that there is an onus, it is on the applicant seeking to set aside the confidentiality claim.”¹³ His Honour went on to say that was not to downplay in the second stage balancing exercise the importance of the interests of justice in ensuring that a party is able to prepare and present its case.¹⁴

• [42] It is settled that information will be confidential for the purposes of s 69 if the party claiming confidentiality could have a reasonable expectation of confidentiality.¹⁵ In Payment Express Gault J held that the authorities did not support a different threshold definition of confidentiality in the context of disclosure between litigants. His Honour continued:¹⁶

Of course, the nature and significance of the confidential information is relevant in the balancing of prejudice to each party. Protecting technical trade secrets may give rise to different safeguards from some other commercial information. But that is in the application of the balancing exercise, not the initial determination as to whether confidentiality is made out.

¹² Port Nelson Ltd v Commerce Commission, above n 7.

¹³ Payment Express Ltd v Paymark Ltd, above n 6, at [21] relying on Pernod Ricard New Zealand Ltd v Lion – Beer, Spirits & Wine (NZ) Ltd HC Auckland CIV-2011-404-1664, 1 December 2011 at [33].

¹⁴ At [21].

¹⁵ Stockman v Health and Disability Commissioner [2020] NZCA 588 at [41] and [47].

¹⁶ Payment Express Ltd v Paymark Ltd, above n 6, at [22].

• [43] In reaching this view, Gault J relied on the Court of Appeal’s decision in R v X where the majority held that the common law has never restricted the subject matter of confidentiality.¹⁷ His Honour referred to trade secrets as an example of confidential information in a commercial setting, relying on AB Consolidated Ltd v Europe Strength Food Co,¹⁸ where the Court of Appeal described confidential information as information which has “the necessary quality of confidence about it” in the sense that it is not “something which is public property and public knowledge.”¹⁹

• [44] These general observations are echoed in English cases, for example in Roussel Uclaf v Imperial Chemical Industries Plc, where Aldous LJ stated:²⁰

Each case has to be decided on its own facts and the broad principle must be that the court has the task of deciding how justice can be achieved taking into account the rights and needs of the parties. The object to be achieved is that the applicant should have as full a degree of disclosure as will be consistent with adequate protection of the secret. In doing so, the court will be careful not to expose a party to any unnecessary risk of its trade secrets leaking to or being used by competitors. What is necessary or unnecessary will depend upon the nature of the secret, the position of the parties and the extent of the disclosure ordered. However, it would be exceptional to prevent a party from access to information which would play a substantial part in the case as such would mean that the party would be unable to hear a substantial part of the case, would be unable to understand the reasons for the advice given to him and, in some cases, the reasons for the judgment. Thus what disclosure is necessary entails not only practical matters arising in the conduct of the case but also the general position that a party should know the case he has to meet, should hear matters given in evidence and understand the reasons for judgment.

Applying confidentiality principles to the documents

Defendants’ position

• [45] The defendants claim certain documents are confidential and submit that the inspection restrictions are required because of:

(a) the significance of the plaintiff and the defendants and their operations in the New Zealand greenshell mussel industry; and

¹⁷ R v X [2009] NZCA 531, [2010] 2 NZLR 181 at [37].

¹⁸ AB Consolidated Ltd v Europe Strength Food Co [1978] 2 NZLR 515 (CA) at 521.

¹⁹ Payment Express Ltd v Paymark Ltd, above n 6, at [24].

²⁰ Roussel Uclaf v Imperial Chemical Industries plc [1990] RPC 45 at 48.

(b) the commercially sensitive nature of the operational and strategic information contained in the documents.

• [46] Counsel for the defendants explains that MacLab is a nutraceutical business with operations that include growing and harvesting mussels and processing them to extract bioactives. TGL is one of two major growers and suppliers of greenshell mussel spat in New Zealand and has previously supplied mussels to MacLab, although not at present.

• [47] The defendants submit that MacLab and TGL each have direct, close, relationships with other operators in the industry:

(a) MacLab’s major customer is Pharmalink, which is a processor of mussel extracts and producer of nutraceutical mussel powders.

(b) CFARMX Ltd, another producer of nutraceutical mussel powders which competes with Pharmalink and actively promotes its relationship with TGL on its website, including emphasising that it uses TGL’s facilities for mussel processing.

• [48] The defendants are concerned about the disclosure of information they submit is highly sensitive financial and strategic information about their business where:

(a) TGL and MacLab directly compete in purchasing greenshell mussel spat, which is limited in supply and is a finite resource.

(b) TGL and MacLab indirectly compete through their close relationships with entities that directly compete with the processors of greenshell mussel extract and sellers of the resulting products.

(c) TGL is a major supplier of greenshell mussels and MacLab may in the future purchase greenshell mussels from it.

(d) TGL’s scale, market dominance, expertise and experience as a grower in the greenshell mussel industry means that it is well placed to diversify its operations by becoming a processor of greenshell mussels

for the nutraceuticals market and/or a producer of nutraceutical products containing greenshell mussel extracts. It would then become a direct competitor with MacLab in the processing market and/or a direct competitor with MacLab’s major customer Pharmalink.

(e) Alternatively, TGL is well placed to support CFARMX’s existing business operations in direct competition with Pharmalink or to assist in diversifying its operations to compete with MacLab.

• [49] The defendants submit that in respect of all of the confidential documents:

(a) None of the information is publicly available, common knowledge in the industry or knowledge that TGL would generally have but for being granted unrestricted access to the documents.

(b) The information is specific to MacLab and would not have been disclosed except for the purpose of this litigation.

(c) MacLab itself recognises the “immense benefit” (as Mr Broadbent’s evidence says in support of MacLab’s opposition) from the commercial advantage it would gain if it were to obtain corresponding information from a competitor. MacLab is therefore acutely aware of how such information could be used by its competitors – for instance, to assess the opportunities for their own product and/or to adjust their own practices or cost structures to achieve better sales at MacLab’s expense.

TGL’s position

• [50] In response, TGL submits:

(a) TGL and MacLab do compete to some extent for the purchase of mussels, but that is attenuated by the fact that:

(i) MacLab produces its own mussels;

(ii) the sale and purchase of mussels is a market in which MacLab is a significant buyer, but so are several other significant participants (for example Sanford Ltd).

(b) Subject to the determination of the Court in these proceedings, TGL is a five per cent owner of the MacLab business and entitled to know the projections on which the business is operating.

(c) TGL was the main supplier of mussels to MacLab from 2014 until late 2020, and as such was aware of MacLab’s purchases, demand and price projections.

(d) Most, if not all, of the documents over which confidentiality is sought were produced in the period and relate to that period and, they say, are out of date.

(e) As part of the negotiations and ongoing arrangements between MacLab and TGL between 2013 and 2020, MacLab disclosed to TGL key terms of the Pharmalink Contract, including its duration, pricing and exclusivity terms. During the negotiations, TGL was provided with extensive financial information under a confidentiality agreement.

(f) From 2014 to 2017 TGL was entitled under the supply agreement to access all financial records for the purposes of checking the royalty payments to be made to TGL.

(g) The Pharmalink Contract and the financial information will be central to the trial of this proceeding as most if not all of MacLab’s output goes to Pharmalink.

• [51] Counsel for TGL further submitted that TGL is subject to the usual obligation not to use documents obtained on discovery for any other purpose, saying this is an obligation not to be lightly disregarded, as the courts have recognised in prior decisions.
• [52] Furthermore, TGL submits counsel can only be properly instructed if the TGL executives and directors have full view of the evidence in the case and can give instructions based on that evidence. In that regard, Mr Milan Talley, Mr Andrew Talley and Mr Greg Kingston are essentially industry experts. Counsel for the plaintiff submits that their knowledge and expertise cannot be replaced nor replicated with outside expert evidence.

• [53] Finally, counsel for the plaintiff submits that the courts regularly allow provision of confidential information to parties where, because of the nature of the dispute, it would not be appropriate to limit inspection to counsel only, relying on Port Nelson, Business Distributors,²¹ British Markitex Ltd v Johnston²² and Oxygen Air Ltd v LG Electronics.²³

• [54] I consider below each of the documents for which the defendants restrict disclosure on the basis of confidentiality. I begin by considering the management accounts, trial balances, Pharmalink contract, Pitcher Partners’ transfer pricing report and valuations as these are all relied on either in the Natoli reports or, in the case of the Pharmalink contract, in the Pitcher Partners’ transfer pricing report. If the base documents are confidential and the balancing exercise favours limiting access to those documents it will impact on the balancing exercise in relation to the reports relying on those documents.

• [55] TGL accept that they are competitors for the purchase of mussels but not to the extent submitted by the defendants. In my view the fact that TGL accepts that they are a competitor even to a limited extent combined with the parties’ positions in the mussel industry and their connections with the processors of nutraceuticals, Pharmalink and CFARMX, mean that for the purposes of considering confidentiality the plaintiff and the defendants ought to be treated as competitors.

²¹ Business Distributors Ltd v SIA Abrasives Australia Pty Ltd [2014] NZHC 3365 at [44].

²² British Markitex Ltd v Johnston (1987) 1 NZPC 69.

²³ Oxygen Air Ltd v LG Electronics Australia Pty Ltd [2017] NZHC 1857 at [73].

Management accounts for the MacLab (NZ) Unit Trust

• [56] The management accounts sought by TGL are for the 2017/18, 2018/19 and 2019/20 years because TGL says it already has the management accounts for the 2014 to 2016/17 periods.

• [57] The management accounts listed in the second supplementary affidavit of Mr Andrew Broadbent²⁴ are for the 2017, 2018, 2019 and 2020 years. It is not clear whether the plaintiff already has all of the 2017 management accounts. In case it does not, I proceed on the basis that none of the 2017 management accounts have been provided on an open basis.

Are the management accounts confidential?

• [58] The defendants submit that the management accounts from the 2017onwards are confidential because they provide a detailed snapshot for directors on the MacLab Trust’s operation and performance and address key issues affecting the performance and direction of the business over the medium to long term. Counsel for the defendants explained that they are typically prepared monthly and contain:

(a) commentary from MacLab’s Chief Financial Officer which includes highly sensitive information relating to the performance of the business and its strategic considerations including future investments opportunities, as well as particular information regarding the business’ finances including volumes of sales, costs, yields and performance against budget;

(b) monthly trading performance information contrasting revenue and costs against budget;

(c) overheads against budget, including as to legal fees incurred; and

(d) balance sheets for a joint venture with MacLab Tasman and a non- related entity.

²⁴ Affirmed 26 February 2021.

• [59] The defendants say they have disclosed all financial reports on an open basis, but not the more recent management accounts. In the defendants’ submission these management accounts would provide TGL with a detailed understanding of MacLab’s business and margins and contain highly sensitive comments that no competitor ought ever to see.

• [60] An example of one of the management accounts, for the period to 28 February 2019, is annexed to the supplementary affidavit affirmed by Mr Andrew Broadbent.

• [61] TGL submits that the management accounts contain only historic information and little that has not already been disclosed. But there is no evidence that the commentary provided in the management accounts appears in the other financial information disclosed, particularly the comments in relation to strategy. The management accounts are documents in which the defendants could have a reasonable expectation of confidentiality and therefore meet the confidentiality threshold.

Balancing exercise for management accounts – prejudice of disclosure compared to prejudice to preparation for trial

• [62] Although confidential, it was accepted that the age of the documents may affect their commercial sensitivity. On this basis the management accounts for the 2017 and 2018 years will no longer be as commercially sensitive as the management accounts for later periods.

• [63] The financial position of the MacLab Unit Trust in the period following the expiry of the initial term of the contract between TGL and the first defendant on 5 January 2017 is critical to the relief claimed by the plaintiff.

• [64] In terms of balancing the prejudice to the defendants of disclosure against prejudice to the plaintiff in not being able to fully instruct counsel and its expert, in my view the management accounts for the 2017 and 2018 periods ought to be disclosed on an open basis with the confidentiality restrictions remaining for the later periods.
• [65] I record that although the 2017 and 2018 management accounts are to be disclosed on an open basis the plaintiff is subject to the usual obligation not to use documents obtained on discovery for any other purpose.

Trial balances for the MacLab (NZ) Unit Trust from 2017 to 2020

• [66] The defendant’s evidence is that the trial balances of the Unit Trust record the general ledger accounts and the value of the ledger balance, specifying the trading income, cost of sales, other income and operating expenses by item.

Are the trial balances confidential?

• [67] The defendants submit these are again highly sensitive as they provide the following insights:

(a) the composition of MacLab’s mussel supply mix from various sources (including a joint venture with an unrelated third party); and

(b) a breakdown of MacLab’s operating expenses by line item, recording the overall profitability of its factory and marine businesses.

• [68] An example of a trial balance is also annexed to Mr Andrew Broadbent’s supplementary affidavit and shows these breakdowns. Again the defendants could have a reasonable expectation of confidentiality and so the trial balances meet the threshold for confidentiality.

Balancing exercise for trial balances – prejudice of disclosure compared to prejudice to preparation for trial

• [69] As for the management accounts, the commercial sensitivity of the trial balances depends to an extent on their age. The trial balances that TGL seeks access to are for the years 2017 to 2020.

• [70] The 2017 and 2018 trial balances will again cause less prejudice to the defendants if disclosed than later years. This is particularly the case given the composition of MacLab’s mussel supply mix has changed significantly since 2017 and 2018 with TGL no longer supplying mussels to MacLab.
• [71] TGL says that much of the information in the trial balances is separately disclosed without claims to confidentiality but this is a double-edged sword. If information is otherwise disclosed, there may not be the same prejudice to trial preparation for TGL as a result of the restrictions on access to these documents.

• [72] In my view the balances for the 2017 and 2018 years ought to be disclosed on an open basis. Restricting disclosure to counsel and experts for the later years appears to appropriately balance the respective prejudices.

The Pharmalink Contract

• [73] The Pharmalink Contract defines MacLab’s relationship with the primary purchaser of its product, Pharmalink.

Is the Pharmalink contract confidential?

• [74] TGL’s challenge to the inspection restrictions on this document is based on its claim that much of the purported confidential information in the contract is not confidential because it has already been disclosed to TGL. Evidence was filed on behalf of TGL confirming that an earlier version of the Pharmalink Contract was disclosed to TGL during the negotiations for the 2014 contract entered into between TGL and the first defendant. When TGL negotiated a replacement contract in 2017 TGL’s evidence is that the defendants discussed the contents of the 2017 Pharmalink Contract as the Pharmalink Contract was entered into only three months before the replacement contract between TGL and MacLab.

• [75] The defendants’ evidence is that the Pharmalink Contract includes information that has never been disclosed to TGL including:

(a) particular aspects of the exclusivity arrangements between MacLab and Pharmalink, including when these may not apply;

(b) the bespoke assignment provision which would, in the event it was engaged, result in an important commercial impact for both MacLab and Pharmalink in the context of the New Zealand industry;

(c) the pricing mechanics contained in Item 5 of Schedule 1; and

(d) a mussel powder certificate of analysis and product specification details.

• [76] Clause 16 of the Pharmalink Contract contains secrecy provisions which the defendants submit reflect the highly commercially sensitive nature of the terms of the contract. The defendants submit that there are good reasons for the Court to take a cautious approach in relation to the Pharmalink Contract:

(a) Disclosure of sensitive pricing details and specifications will provide TGL with a commercial advantage that could enable it to undercut MacLab or otherwise compromise MacLab’s relationship with Pharmalink, MacLab’s main customer.

(b) MacLab must maintain relationships with other potential purchasers of its product in case it becomes necessary to resort to alternative markets. This could arise if Pharmalink could not meet its minimum volume commitments under the Contract. The defendants say it is important to MacLab that the terms of its exclusive supply arrangements with Pharmalink are not made available to potential competitors in markets in which it may operate in the future.

(c) There is a real risk that Pharmalink’s own competitive position in the nutraceutical market would be compromised by disclosing confidential information to any entity that is associated with its competitors.

• [77] The correspondence annexed to the defendants’ affidavits confirms that whilst it was initially agreed in 2017 that a copy of the Pharmalink Contract would be shared with TGL, that offer was retracted and the defendants made it clear that they were no longer prepared to do so. It is clear from this correspondence that the Pharmalink Contract was treated as highly confidential.
• [78] Although some information may have been disclosed the extent of the disclosure is not clear. It appears unlikely however that MacLab would have disclosed the pricing mechanics and the arrangements with Pharmalink given their reluctance to share a copy of the contract even before these proceedings were brought.

• [79] In Vector Gas pricing information was held to be confidential.²⁵ Gault J in Payment Express accepted that pricing information extends beyond actual prices and that depending on the context, pricing structure may be confidential.²⁶

• [80] In my view the Pharmalink Contract meets the threshold for confidentiality.

Balancing exercise for Pharmalink Contract – prejudice of disclosure compared to prejudice to preparation for trial

• [81] Disclosure of the Pharmalink Contract would likely provide TGL with information that it could use to MacLab’s disadvantage. Asher J in InterCity held that this factor justified restrictions on the confidentiality of the documents in question. The Court of Appeal commented in New Zealand Railways Corp that no matter how conscientious and honourable, executives could be placed in a most invidious position by being made privy to confidential material and that possibility ought to be avoided as much as possible.²⁷

• [82] MacLab’s interest in safeguarding its confidential information in a competitive market outweighs TGL’s interests in having access to the Pharmalink Contract in circumstances where access has been given to external counsel and the independent expert and there is no evidence that these restrictions are causing difficulties in obtaining instructions. The confidentiality restrictions in relation to the Pharmalink Contract therefore are to remain.

²⁵ Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [32].

²⁶ Payment Express Ltd v Paymark Ltd, above n 6, at [25(d)].

²⁷ New Zealand Railways Corp v Auckland Regional Council (1990) 3 PRNZ 332 (CA), cited in

Payment Express Ltd v Paymark Ltd, above n 6, at [27].

Pitcher Partners transfer pricing report dated 15 January 2020

• [83] The defendants say Pitcher Partners were engaged to prepare a transfer pricing report to ensure that the business was appropriately applying transfer pricing provisions for royalty charges and management fees between the Australian and New Zealand entities of the MacLab group.

Is the information in the Pitcher Partners report confidential?

• [84] It is submitted on behalf of the defendants that the transfer pricing report contains commercially sensitive information including:

(a) details of past and ongoing research and development;

(b) details of developments in production methods which have the potential to impact MacLab’s product offerings;

(c) descriptions of MacLab’s manufacturing processes;

(d) MacLab’s strategy;

(e) a risk assessment for MacLab’s business; and

(f) references to the confidential Pharmalink Contract (as discussed above).

• [85] The nature of this information is clearly information the defendants could reasonably expect to be confidential and so the report meets the confidentiality threshold.

Balancing exercise for Pitcher Partners report – prejudice of disclosure compared to prejudice to preparation for trial

• [86] The Pitcher Partners’ report relates to transfer pricing for the year ended 30 June 2018 and so it relates to information that is now three years old. It does however go into some detail in relation to the terms of the 2017 Pharmalink Contract in respect of which I have already held the confidentiality restrictions are appropriate.
• [87] Furthermore, there is no evidence that the independent expert for the plaintiff is unable to interpret the report without full disclosure to and instruction from the TGL directors or executives.

• [88] The Court is able to revisit any confidentiality restrictions as the case unfolds.²⁸ If it proves to be the case that the independent expert requires the documents to be disclosed to TGL’s directors or executives to enable full instructions, then a further application can be made. In the meantime however the balance falls in favour of the confidentiality restrictions remaining.

Alexander Hayward valuation dated 30 April 2019.

• [89] Alexander Hayward Ltd prepared this valuation in relation to an application for a resource consent regarding water rights to be held by SMW Consortium (Golden Bay) Ltd and SMW Consortium (Tasman Bay) Ltd. The second defendant is a shareholder of these companies along with a number of third parties.

Is the information in the Alexander Hayward valuation confidential?

• [90] The defendants submit this valuation includes highly sensitive commercial information because in addressing the second defendant’s expected net share of the resulting value it discusses:

(a) how the mussel farm will be used;

(b) the mussel farm’s potential productivity; and

(c) the present and analysed values of the subzones.

• [91] The defendants submit further that the potential value of each third party’s rights can be extrapolated from the information in the report.

• [92] TGL submits that the information contained in the valuations generally is largely historic. The Alexander Hayward valuation, however, is as at 31 March 2019.

²⁸ Intercity Group (NZ) Ltd v Nakedbus NZ Ltd, above n 5, at [37].

This is sufficiently current to still be commercially sensitive. This report therefore meets the threshold for confidentiality.

Balancing exercise for Alexander Hayward valuation – prejudice of disclosure compared to prejudice to preparation for trial

• [93] TGL submits that the report was only five pages long and it was an example of needing to know what the valuation is discussing to understand what it means.

• [94] Counsel for the defendants submits in response that there is no evidence from the plaintiff explaining why it is critical for this document to be disclosed on an open basis. In relation to this valuation, again the prejudice from disclosure appears to outweigh any prejudice from the confidentiality restrictions and so I consider the confidentiality restrictions ought to remain in place.

The JLL Valuation Report dated 29 April 2019

• [95] Jones Lang LaSalle (“JLL”) prepared a valuation of the plant and machinery at MacLab’s NZ’s manufacturing premises in Nelson in April 2019. This valuation was to assist BNZ to assess its security in relation to its lending. The JLL Report lists the plant and equipment used in the extraction of compounds from green lipped mussels included in the main processing area, the freeze tunnel, and the refrigeration plant room.

Is the information in the JLL Report confidential?

• [96] The defendants submit that the information in the JLL Report identifying the specific plant and equipment used by MacLab gives an insight into MacLab’s manufacturing process which MacLab goes to great lengths to protect the confidentiality of, including by:

(a) not permitting devices capable of recording or taking pictures on its manufacturing floor; and

(b) requiring production crews that come on site from time to time to allow MacLab to view any footage of the manufacturing floor that has been

filmed, giving MacLab the opportunity to require the editing of any footage that shows plant and equipment central to the manufacturing process.

• [97] Again this is information for which the evidence establishes that the defendants could have a reasonable expectation of confidentiality so it meets the necessary threshold.

Balancing exercise for JLL valuation – prejudice of disclosure compared to prejudice to preparation for trial

• [98] TGL’s expert witness, Mr Shane Hussey, gives evidence that he needs to see the confidential documents to allow him to value the MacLab business at the relevant times. Mr Hussey now has access to the documents but the question is whether that access needs to be extended to the TGL directors and executives.

• [99] There is no evidence from Mr Hussey that he will be unable to assess the relevance of the valuation without assistance from the TGL directors. Nor do the TGL directors or any one of them need to see the documents to be able to recommend to other directors whether to proceed with the claim. This is not a copyright claim as in Technopak where access was given to a director because he was best placed to assess the relevance of the documents to Technopak’s claim.²⁹ The TGL directors can rely on the valuations prepared by the independent expert to assess whether to continue with the proceeding.

• [100] In Technopak Lang J found that in some cases the courts have said it would be impossible or unrealistic for a party who views confidential material to “ring fence” the knowledge gained from viewing it so as to prevent future harm being inflicted on a competitor.³⁰ Lang J did not consider that there was such a danger in Technopak but here, where the document outlines the machinery used, it may be difficult for the TGL directors or executives to keep that information separate in their minds if the information were to be disclosed to them.

²⁹ Technopak Ltd v Monzeal Ltd [2020] NZHC 1940.

³⁰ At [24], citing Todd Pohokura Ltd v Shell Exploration NZ Ltd HC Wellington CIV 2006-485- 1600, 12 August 2009 at [20].

• [101] Balancing the likely commercial prejudice to the MacLab business against the prejudice TGL would suffer in preparing its case if only counsel and independent experts are able to view the JLL Report, it appears appropriate for the restrictions to remain.

The Natoli Reports

• [102] Both Natoli Reports have now been provided on a confidential basis to counsel and the independent expert for TGL following the undertakings referred to above having been provided.

• [103] The defendants’ evidence is that the Natoli Reports were prepared to establish a fair price for units in the MacLab Unit Trust as at 30 June 2018 and 30 June 2019 to enable unit holders to decide whether to re-invest their dividends in the business.

Are the Natoli Reports confidential?

• [104] The defendants submit that Mr Natoli has referred to and included in his reports highly confidential information including:

(a) information from the Unit Trust’s management accounts;

(b) valuations of assets in the Unit Trust;

(c) Pharmalink’s stock and market levels;

(d) historic sales volumes and management forecasts of future volumes; and

(e) details of MacLab’s strategic plan.

• [105] TGL’s challenge to the confidentiality of the Natoli Reports rests on their claim that:

(a) the reports do not appear to reveal any trade secrets;

(b) the figures in the report are too summarised to have any real value as trade secrets; and

(c) the information is reasonably historic and so is too old to harm the defendants if disclosed.

• [106] In my view there is no question that the Natoli Reports are confidential. They are valuations of the MacLab Unit Trust dated 28 June 2018 and 26 June 2020. They rely on documents which are confidential and for which I have found confidentiality restrictions are appropriate.

• [107] In Port Nelson the Court of Appeal gave as an example of documents that may be commercially sensitive, documents showing “the detailed costings of products or services which are provided in a competitive market.”³¹

• [108] As the Court of Appeal held in Port Nelson, even the possibility of prejudice may be sufficient although the Court did acknowledge that this will depend on the seriousness of the possible prejudice, the significance of the document to the issues in the proceeding, and the extent to which limited disclosure may enable the concerns of both parties to be accommodated.

• [109] The second Natoli Report attaches a document headed “Valuation Methodologies and General Principles”. This explains that the value of any asset is a function of the following factors:

(a) net expected economic benefits (periodic flows based on price and volumes together with capital return via sale of the asset as a whole or realisation piecemeal);

(b) capital requirements (initial outlay to established infrastructure) and anticipated capital expenditure to maintain productive capacity in line with projected volumes;

(c) timing of economic benefits;

(d) risk profile (of the economic benefits); and

³¹ Port Nelson Ltd v Commerce Commission, above n 7, at 349.

(e) rate of return required (given the nature of the economic benefits and associated risk profile).

• [110] There is no question that expected periodic flows based on price and volumes together with capital requirements, risk profiles and strategy is all information that would be considered commercially sensitive. The discussion of these aspects including in reliance on information from the confidential documents referred to means the Reports meet the threshold for confidentiality.

Balancing exercise for Natoli Reports – prejudice of disclosure compared to prejudice to preparation for trial

• [111] TGL submits that the Natoli Reports go to the heart of TGL’s claims in these proceedings in terms of revealing the positions pre and post the 2014 and 2017 contracts and how that has impacted and is impacting the earnings and value of the Unit Trust. This can then be compared to the position TGL submits should have resulted if the defendants had complied with their contractual obligations under the agreements.

• [112] The defendants do not accept this as they submit the Natoli Reports only address the value of the Unit Trust in 2018 and 2019 for the limited purpose of the second defendant’s dividend reinvestment plan. The defendants now accept the Reports may be broadly relevant to the valuation of the Unit Trust but dispute that they can be regarded as essential in any damages calculation. In the defendants’ submission the primary source of information that the parties’ experts will use for a valuation exercise will be the financial statements and reports for the various entities. This information has already been disclosed and the defendants are not seeking confidentiality restrictions in relation to most of those documents.

• [113] Furthermore, the defendants do not accept the submission that the information contained in the Natoli Reports is too summarised or too historic to justify restricted access saying the Reports relate to the 2018 and 2019 financial years. The defendants submit that their concerns about potential disclosure of the Natoli Reports are based on TGL obtaining:

(a) a competitive advantage over MacLab as outlined above through having access to detailed reporting of the Unit Trusts’ strategic plans and forecasts; and

(b) an enhanced negotiating position in any future discussions with TGL for the supply and purchase of raw mussels, submitting if TGL has access to the Natoli Reports, TGL would learn:

(i) the Unit Trust’s market assessments and explanations for why its sales figures are above or below expectations;

(ii) the Unit Trust’s forecasted and budgeted results, including its expected revenues and expenses;

(iii) the Unit Trust’s allocation of overheads and overall profitability of its factory and marine businesses; and

(iv) the source of the Unit Trust’s mussel supply mix and management’s projections regarding potential sourcing of mussels from third parties in addition to the Unit Trust’s own farms, which compete with TGL.

• [114] Like in Payment Express and Pernod Ricard, there is a clear risk of commercial harm to MacLab if the confidentiality restrictions are set aside.

• [115] Further, there is no evidence that the Reports contain information that needs to be disclosed to TGL’s directors or executives to allow TGL to adequately prepare for trial. It therefore seems that TGL’s right to inspect the confidential Natoli Reports does not outweigh the harm to MacLab of disclosure. The balancing exercise favours the confidentiality restrictions remaining in place.

• [116] As with the other documents, a Court may reassess this as the case progresses if issues arise.

Result

• [117] I make orders in respect of each of the applications as follows:

Plaintiff ’s application for further and better discovery

(a) The defendants are to swear a further affidavit confirming that all documents that fall within the categories set out in the schedule to the plaintiff’s amended application dated 18 December 2020 have been discovered by 5 November 2021 (if not already filed and served).

Defendants’ application for further and better discovery

(b) TGL is to provide access to the defendants to the Citrix database (described as the electronic shellfish payment database) by 5 November 2021.

(c) The defendants are to advise TGL by 12 November 2021 of a set of five confined date ranges for which TGL is to provide copies of invoices in its supplementary affidavit as referred to below to allow the defendants to confirm the accuracy of the Citrix database.

(d) TGL is to:

(i) apply keyword searches across all email accounts and databases in TGL’s control that may hold potentially relevant documents, with the keywords set out in Schedule A;

(ii) file and serve a supplementary affidavit complying with rr 8.15 and 8.16 of the High Court Rules 2016 by particularising the steps it has taken to search for potentially relevant documents, with the steps that the defendants propose ought to be taken set out at Schedule B by 26 November 2021;

(iii) include in the supplementary affidavit a list of all documents in TGL’s control that are:

1. relevant following application of the keyword searches recorded in Schedule A; or

2. copies of invoices in the date ranges identified by the defendants as required above at [120];

3. agreements between TGL and mussel growers for the procurement and supply of mussels, term sheets, heads of agreement or other documents relating to mussel supply and/or purchase commitments over the relevant period, irrespective of whether the mussels were supplied to MacLab;

(iv) to produce for inspection all further documents listed in its supplementary affidavit and not privileged at the same time as the affidavit of documents is filed and served.

Plaintiff ’s application for review of confidentiality restrictions

(e) The defendants are to provide the 2017 and 2018 management accounts and the 2017 and 2019 trial balances on an open basis to the defendants but otherwise the confidentiality restrictions imposed by the defendants are to remain.

• [118] Leave is reserved to the parties to seek further orders by memoranda (preferably joint) if necessary.

Costs

• [119] I did not hear from the parties on costs. Each of the parties has had some success and so it may be that costs ought to lie where they fall. This is reinforced by my impression from the hearing that the defendants’ initial assessment of relevance (especially of the Natoli Reports) and the need for redaction was difficult to understand. Again, I record however that I did not hear from the parties on this.
• [120] I ask the parties to confer and endeavour to agree costs. If that is not possible, as both parties brought applications, memoranda of no more than 5 pages may be filed by both parties within 20 working days of this judgment. Each party may file a reply of no more than three pages within a further five working days.

Associate Judge Sussock