Brosnan v Katke

REASONS FOR JUDGMENT 1 These proceedings concern an interlocutory application made by the applicants in the principal proceeding for orders under r 20.13 of the Federal Court Rules 2011 that the respondents give discovery of documents described at paras 1(a) to (r) of the application. I will return to the appropriateness of reliance upon r 20.13 later in these reasons. 2 The applicants also seek an order that they be granted leave to further amend the further amended statement of claim of 26 April 2013 in terms of proposed paras 10 and 32 of a second further amended statement of claim. 3 The application was heard on 26 February 2014 on the footing that the matter was required to be brought before the Court in circumstances of some urgency. The position, of course, is that the sense of urgency surrounding the matter is largely of the applicants' own making and I will return to that topic later in these reasons. 4 The history of the matter briefly is this. 5 The proceedings were commenced in 2012 supported by a statement of claim filed on 9 August 2012. On 12 September 2012, the respondents filed an application to strike out various paragraphs of the statement of claim. On 9 November 2012, the statement of claim was struck out. The applicants were given leave to file an amended statement of claim taking into account particular matters described in Order 2 of the orders made that day: Brosnan v Katke [2012] FCA 1249. 6 On 26 April 2013, the applicants filed a further amended statement of claim. I will return to that document shortly. 7 On 4 July 2013, the respondents filed an amended defence and on 16 July 2013 the applicants filed an amended reply. 8 In the further amended statement of claim of 26 April 2013, the applicants plead that from in or about May 2004 until 27 April 2005, the applicants and the respondents (by Mr Katke and Mr Morey) were engaged in negotiations for the purchase by the second respondent, Metagenics Australia Pty Ltd ("MAPL"), of the applicants' shares in Health World Limited ("HWL"). At para 4, the applicants plead that during the course of those negotiations, Mr Katke and Mr Morey, made a number of representations on behalf of MAPL and the third respondent, Metagenics Inc ("M Inc"), including a representation that M Inc "would proceed to an initial public offering ("IPO") on a recognised US stock exchange during 2005 markets permitting" (para 4(a)). 9 That representation is supported by nine particulars in the period 28 September 2004 to 7 April 2005. Five other representations are pleaded at para 4 and all six representations are described as the "2005 representations". 10 At para 5, the applicants plead the representations in relation to Pfizer. 11 Relevantly for present purposes, the applicants plead at para 6 that they relied upon the 2005 representations (including the para 4(a) representation) in entering into a written Share Purchase Agreement dated 27 April 2005 for the sale of their shares in HWL to MAPL on the terms pleaded at para 8. 12 That agreement proceeded to completion. 13 At para 10(a), the applicants plead that M Inc "was not ready and therefore could not proceed to an IPO on a recognised US stock exchange in 2005 because the accounts of [M Inc] were not sufficiently accurate or otherwise compliant with appropriate accounting standards to allow the auditors of [M Inc] to sign an audit report in respect of [M Inc]" [emphasis added]. 14 At para 10(b), the applicants plead that M Inc remained unable to proceed to an IPO on a recognised US stock exchange "up to and including July 2009 for the reasons pleaded in (a)" [emphasis added]. 15 At para 11, the applicants plead that in so far as the 2005 representations "were as to future matters the applicants rely upon s 51A of the Trade Practices Act 1974 (Cth)". 16 At para 16(a), the applicants plead, relevantly, that in making the 2005 representations, MAPL and M Inc engaged in misleading or deceptive conduct within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (the "Act"). Thus, as to the matters relevant to the present application, the cause of action is a claim for relief arising out of a contended contravention of s 52 of the Act. 17 In the amended defence, the respondents plead in answer to para 4(a) that on 28 September 2004, Mr Katke sent an email to one of the applicants which included the observation that "we are shooting for an IPO in March or April markets permitting". At paras 10(b) to 10(j), the respondents plead a wide range of factual matters in response to the representation pleaded at para 4(a). The scope, content and context of the negotiations and what was said (or not said) is in controversy although in that contested narrative, as a question of fact, the transmission of the email of 28 September 2004 by Mr Katke to one of the applicants is admitted. 18 As to the applicants' pleading at paras 10(a) and 10(b) that M Inc was not ready and could not proceed to a US securities exchange IPO listing in 2005 (or in the period up to and including July 2009) for the reasons earlier mentioned, the respondents say at para 27 that they deny those factual allegations. 19 They say at para 27(b) (in effect, in answer to the inadequacy of the accounts point) that M Inc received unqualified audited financial statements for the financial years ending 31 December 2004, 31 December 2005, 31 December 2006, 31 December 2007, 31 December 2008 and 31 December 2009. They say that in about late March 2006, M Inc became aware that "the European distributors it had contracted to acquire were expected to produce a larger loss than had been anticipated". 20 They also say at para 27(b) (in answer to the inability of the auditors to sign an audit report), that in about late March 2006, M Inc was advised by its external auditors that it should not, prior to completion of further audit work, file documentation with the US Securities Exchange Commission in connection with a proposed IPO of securities in M Inc. The respondents plead other matters in relation to the activities of the external auditors and say that prior to the 2005 agreement, M Inc did not know that M Inc's European distributors (which it had contracted to acquire) were expected to produce a larger loss than had been anticipated or that the auditors would give the advice they gave and experience the delay in performing the audit work that they experienced. 21 Other entities apart from MAPL, M Inc and HWL have raised their heads in the proposed amendments to the statement of claim to be mentioned later in these reasons. However, as to their provenance in the pleadings, it should be noted that at para 10(e), the applicants plead that M Inc did not achieve the revenue and EBITDA figures the subject of future revenue representations by Mr Katke and Mr Morey for the American division of M Inc (para 4(c)) and the European division of M Inc (para 4(d)). In pleading to aspects of those matters on 4 July 2013, the respondents plead that M Inc did not complete the acquisition of all of the European distributors until about May 2006 (para 29(c)(ii)). Euro Nutri BV was acquired in about December 2005. Biodynamics BVBA and Special Nutritionals Europe NV were acquired in about May 2006. In about May 2006, M Inc acquired 26% of Bionutrics NV as a result of M Inc's acquisition of Biodynamics BVBA which owned shares in Bionutrics NV (para 29(c)(ii)(A), (B) and (C) of the amended defence). 22 As to para 11 of the applicants' pleading as at 24 April 2013 to the effect that, so far as the 2005 representations were as to future matters (and invoking reliance upon s 51A of the Act), the respondents, at para 31, say that as to any future matters (which seems to include para 4(a) of the applicants' statement of claim by reason of omission from para 31(a)), "there was a reasonable basis for representations made by [M Inc]" [emphasis added]. 23 In their amended reply of 16 July 2013, the applicants plead responsively to para 27(b) of the amended defence and raise a wide range of factual matters. For example, they say, at para 21(a) to (e) that M Inc would have been required to produce audited financial statements not more than 135 days old at the date of any SEC filing or if more than 135 days after the end of the financial year, interim reviewed financial statements no more than 135 days old would have been required; M Inc could not meet such requirements despite attempting to do so from 1 September 2005 until September 2007; the audit report for M Inc's 31 December 2004 accounts was not signed until 29 April 2005; the audit report for the 31 December 2005 accounts was not signed until 30 November 2006 (six months after the "cut-off" date for the SEC filing); and the 31 December 2005 accounts were the subject of a further audit conducted by Grant Thornton signed on 6 October 2008. 24 By para 21(f) of the amended reply in response to para 27(b) of the amended defence, the applicants say that by a letter dated 30 November 2006, the then auditors of M Inc, KPMG, stated that under the standards established by the American Institute of Certified Public Accountants there were "significant deficiencies in the design or operation of [the] internal control of [M Inc] which could adversely affect [M Inc's] ability to record, process, summarise and report financial data consistent with the assertions of management in the consolidated financial statements". 25 The applicants also plead that by that letter, KPMG advised M Inc that it did not have the procedures and personnel necessary to identify and properly analyse complex non-routine transactions; it did not currently have an adequate level of technical accounting expertise to operate in an increasingly complex or public reporting environment; objectively determined methodologies supported by historical data were not adopted by M Inc in calculating estimates and reserves but rather were based on general formulas and non-current information with the result that an objectively determined analysis of M Inc's estimates and reserves using historical data significantly changed the recorded account balance; M Inc had entered into significant transactions for which there was no formal or legal documentation; there were inappropriate controls for key IT infrastructure with out-dated procedures for back-ups etc with informal procedures governing IT controls and generic and shared user accounts. 26 At para 21(g) to (w) of the amended reply, the applicants plead a range of further matters in answer to para 27(b) of the amended defence. 27 It is now necessary to return to the chronology of events. 28 On 4 December 2013, a number of orders were made to progress the proceeding to a four week trial commencing on 14 July 2014. 29 The orders required the applicants to file and serve their experts' reports by 28 February 2014. By 21 March 2014, the applicants are required to file and serve an outline of the evidence-in-chief expected to be given orally by each lay witness they intend to call in respect of six topics at the heart of the proceeding including the 2005 representations pleaded in para 4 of their pleading. By 23 May 2014, the respondents are to file and serve their experts' reports and by 6 June 2014, the experts in each area of expertise are to meet and discuss the relevant issues with a view to producing a joint report meeting particular requirements, and provide that report to the lawyers for the parties. 30 By 23 May 2014, the respondents are to file and serve an outline of the evidence-in-chief expected to be given orally by each lay witness they intend to call in relation to the six topics. 31 By 13 June 2014, the applicants are to file an outline of responsive evidence. 32 The index for the bundle of documents for trial is to be filed by the applicants by 13 June 2014 with an updated index by the respondents by 23 June 2014. Objections to documents in the bundles are to occur by 27 June 2014 and the trial will commence on 14 July 2014. 33 The sense of urgency on the part of the applicants emerged because they found themselves in a position where they simply would not be able to file an expert report from their chosen expert, Mr John Huber, by 28 February 2014. Mr Huber is a person who is said to have expertise in the areas of the requirements relating to securities offerings on a United States securities exchange; strategic transactions; corporate disclosure; restatements; internal controls over financial reporting; and corporate governance. He is said to be a person who provides advice to companies facing SEC enforcement actions, investigations and the need to make responses to requirements of the SEC concerning securities offerings. 34 The interlocutory application of the applicants is supported by an affidavit by Mr Cliff, a partner of the solicitors for the applicants, Mills Oakley Lawyers. Mr Cliff says that in the period from 7 January 2014 to 14 January 2014 he was in negotiations with a particular expert for the purposes of engaging that person to provide an expert report on the matters the subject of Mr Huber's expertise. That expert, Ms McDonald, was not able to accept an engagement with the result that Mr Cliff first spoke to Mr Huber on 15 January 2014 and provided him with a preliminary briefing about the issues in the proceeding. 35 Reasonably constant exchanges then occurred between the solicitors for the applicants and Mr Huber. Mr Cliff met with Mr Huber in New York in late January. Between 28 January 2014 and 6 February 2014, Mr Cliff and his staff carried out reviews of the respondents' and applicants' disclosure to determine which of the documents identified by Mr Huber for assessment had been disclosed. In Mr Cliff's affidavit at para 19, he identifies 19 categories of documents the applicants seek by way of further discovery. At paras 23 and 24 of his affidavit, Mr Cliff extensively sets out, on information and belief, information given to him by Mr Huber as to the relevance of the documents to issues concerning steps a promoter of a proposed IPO on a United States securities exchange would need to undertake in a regulatory sense to meet all of the requirements of the Securities Act of 1933 (US), the Securities Act of 1934 (US) and regulatory requirements prescribed by the United States Securities and Exchange Commission. Mr Huber is a former director of the Corporation Finance Division of the United States Securities and Exchange Commission. 36 In the period from 6 February 2014 to 24 February 2014, the solicitors for the parties exchanged correspondence as to the adequacy of disclosure by the respondents. Put simply, Mills Oakley Lawyers, for the applicants, contended throughout those exchanges that the disclosure of the respondents was inadequate and that documents relating to a range of contracts and agreements between M Inc and the entities identified at [21] of these reasons ought to be produced including documents recording the "calculation of significance" (a term of art) of the relevant entities as a factor in M Inc's acquisition of a relevant entity occurring either shortly before or during a process for a proposed IPO of the securities in the acquiring or controlling entity (M Inc). 37 The respondents, put simply, took the position that the documents sought by the applicants were not discoverable having regard to the issues in controversy as framed by the pleadings. The position adopted by the respondents is set out in the correspondence from their solicitors, Johnson Winter & Slattery, dated 17 February 2014 in response to the letter from Mills Oakley dated 12 February 2014. 38 In the result, the applicants proposed a version of a further amended pleading by their solicitor's letter dated 20 February 2014 and then proposed another version of a further amended statement of claim to avoid, they say, a later argument about either the admissibility of Mr Huber's evidence or whether the pleadings properly frame a controversy of fact that would render the further documents they seek relevant and discoverable. 39 In the very latest form of that document called the second further amended statement of claim ("SFASOC"), the applicants seek leave to amend the pleading by making a range of amendments to paras 10 and 32 of the existing pleading which amendments, in effect, seek to take up contentions relevantly connected with the information provided by Mr Huber about what necessarily would be required of M Inc in order to be in a position to proceed to an IPO of M Inc on a US stock exchange in 2005. For example, the applicants seek leave to amend their pleading at para 10(a) to now say this: [M Inc]:- a. was not ready and therefore could not proceed to an IPO on a recognised US stock exchange in 2005 because the accounts of [M Inc] and the entities pleaded in 10.aa.v. herein were not sufficiently reliable, accurate or otherwise compliant with appropriate US General Accepted Accounting Principles (GAAP) or the requirements of the US Securities and Exchange Commission (SEC) (as particularised in paragraph 21 of the amended reply) to allow the auditors of [M Inc] to sign a consent to the use of their audit report in respect of [M Inc]. [the sections in bold represent the proposed amendments to the earlier pleading of para 10(a)] 40 At proposed para 10(aa), the applicants say that M Inc was not ready and could not proceed to an IPO in 2005 or 2006 because it was not in a position to meet the financial reporting requirements under the relevant United States legislation and the rules and regulations adopted under that legislation required of an entity seeking to be listed. The applicants say, by para 10(aa)(i) to (viii), that M Inc could not proceed with an IPO because it did not have audited consolidated balance sheets to the end of the two most recently completed financial years, namely, 2003 and 2004. Nor did it have audited, consolidated statements of income and cash flows for each of the three years preceding the date of the most recent audited balance sheet. Nor did it have an unaudited interim consolidated balance sheet prepared to a date less than 135 days prior to the date in 2005 or 2006 on which M Inc would have been required to file a Form S-1 (the para 10(aa)(iii) proposition). Nor did it have unaudited interim consolidated statements of income and cash flows between the latest audited balance sheet and the date of the most recent interim balance sheet (referred to in para 10(aa)(iii) filed, plus the same statements for the same period in the preceding financial year. 41 Nor did it have audited financial statements of HWL, Euro Nutri BV, Bio Dynamics BVBA, Special Nutritionals Europe NV and BioNutrics NV as required by r 3-05 of Regulation S-X as required by the SEC. 42 Nor did it have pro forma financial statements for the most recent financial year and subsequent interim period for which the financial statements of M Inc were required to be included in the Form S-1 to reflect the acquisitions of HWL and the other entities mentioned at [41]. 43 Nor did it have a signed, currently dated consent from its auditors as required by s 7(a) of the Securities Act of 1933 (US). 44 Nor did it have an effective system of internal control over financial reporting as required by the securities regulations of the United States. 45 At proposed para 10(ab), the applicants say that M Inc was not ready or able to meet the periodic filing requirements of the Securities Exchange of Act of 1934 (US) and the rules and regulations adopted under that legislation because M Inc reflected material weaknesses in its system of internal control over financial reporting as set out in para 21 of the amended reply and such weaknesses would have made it impossible for M Inc to file timely interim and annual reports as required by the SEC. 46 At proposed para 10(ac), the applicants propose to plead that by reason of the matters set out at para 10(aa) and para 10(ab), M Inc would not have been able to obtain from its auditors, KPMG, "auditor consent" required for M Inc under United States securities exchange legislation and "GAAP" in support of a regulatory Form S-1 filing for an IPO. 47 At para 10(b), the applicants plead that M Inc was unable to proceed to an IPO up to July 2007 (rather than July 2009) for the reasons identified at para 10(a), and that follows because M Inc was unable to comply with six public accounting standards, provisions of relevant US legislation and/or elements of particular regulatory requirements. The applicants also identify a seventh "GAAP" instrument by asserting that M Inc had to comply with GAAP principles "insofar as the applicants need to assert that the accounts in question had to be prepared for the SEC registration statement Form S-1 in accordance with all of the principles". The applicants however now contend or accept that the seventh category is not intended to go beyond the specific instruments pleaded at para 10(b)(i) to (vi). 48 The point of all of this is said to be to provide a pleaded foundation for the disclosure of the categories of documents discussed in the correspondence between the parties' lawyers throughout February. 49 The respondents correctly observe that a substantial body of the material sought by the applicants is not discoverable on the basis of the existing pleadings. Those documents identified by Mr Huber as a necessary part of a train of due diligent compliance along a path to an IPO of M Inc did not become discoverable simply on the basis of a denial of the particular facts asserted in para 10(a) of the 26 April 2013 statement of claim; or on the footing of the facts pleaded at para 27(b) of the amended defence; or on the footing of an assertion in the amended defence that M Inc had a reasonable basis for making any representations as to future matters. 50 Plainly, the pleadings need to properly reflect the content of the case the applicants want to make at trial as reflected in the proposed amendments to the statement of claim and the foreshadowed evidence of Mr Huber outlined in Mr Cliff's affidavit (to be the subject of an expert report from him if made relevant to pleaded issues) supported by access to the field of documents made relevant and discoverable on the pleadings, once the pleadings are regularised. Similarly, the respondents would, no doubt, seek access to any further documents of the applicants made relevant and discoverable by the regularised pleadings. 51 What is the case the applicants seem to want to prosecute at trial? It is presently to be found in the further statement of claim of 26 April 2013, the proposed SFASOC and, extensively, in the amended reply. 52 A consolidated amended statement of claim ought to be filed and served that sets out the affirmative case to be prosecuted at trial identifying all the material facts relied upon by the applicants in seeking to establish the contended contravention of s 52 of the Act said to arise out of the pleaded representation at para 4(a) (which remains unchanged) that, in the course of the negotiations between May 2004 and 27 April 2005 for the sale by the applicants of their shares in HWL to MAPL, Mr Katke and Mr Morey represented to the applicants that M Inc "would proceed to an [IPO] on a recognised US stock exchange during 2005 markets permitting". 53 The applicants contend that at the various times that that representation was made (that is, between 28 September 2004 and 7 April 2005) M Inc was "not ready" and "could not" proceed to an IPO on a recognised US stock exchange for many reasons. Initially, it was said to be because, at the time the representations were made, the accounts of M Inc were not "sufficiently accurate" or "compliant" with the "appropriate accounting standards" to allow the auditors appointed to M Inc to "sign" the required audit report. Now it is also said to be because, at the time the representations were made, the accounts of M Inc, HWL, Euro Nutri BV, Bio Dynamics BVBA, Special Nutritionals Europe NV and BioNutrics NV mentioned at proposed para 10(aa)(v) were not sufficiently reliable, accurate or otherwise compliant with particular United States accounting standards now particularised at para 10(b) (and otherwise described as the applicable US GAAP) and other regulatory requirements of the SEC set out at para 21 of the amended reply. 54 Many material facts are pleaded in the proposed subparagraphs at para 10 which are said to demonstrate that M Inc could not proceed to an IPO in 2005. Many material facts are set out at para 21 of the amended reply which are said to support the same conclusion. 55 Some proposed subparagraphs at para 10 and some subparagraphs at para 21 of the amended reply are directed to M Inc's inability to secure an IPO in 2005, 2006 and up to September 2007. Whatever else might be made of those factual matters in the 2006 and 2007 years, presumably the applicants seek, at least in part, to rely upon those material facts as suggesting something about M Inc's inability to proceed to an IPO listing on a US stock exchange during 2005, markets permitting (having regard to the fact that the representation was made variously between 28 September 2004 and 7 April 2005). 56 It seems to me that all of these matters said to be facts material to the contended contravention of s 52 arising out of the para 4(a) representation presently spread, in part at least, across the amended pleading of 26 April 2013, the proposed amended pleading and the amended reply should be made plain by a new pleading which, for example, identifies with particularity the relevant accounts of the relevant entities which were, at the dates of the para 4(a) representation, not sufficiently reliable, accurate or compliant with the particular regulatory instruments. 57 The applicants then say (relevantly for this interlocutory application) at para 16 that by Mr Katke and Mr Morey making the para 4(a) representation (at the various dates when made) MAPL and M Inc engaged in conduct that was misleading or deceptive for the purposes of s 52 of the Act. The applicants plead the fact of non-conformity with particular standards and regulatory requirements by M Inc (and its controlled entities) rendering a listing in 2005 (and also later) not possible. However, the content of the respects in which there were deficiencies is not yet pleaded. The applicants say that the respondents have not previously objected to the failure of the applicants to plead the detail of those deficiencies. 58 The content of those deficiencies, it is said, will be made apparent not by a present pleading but by the filing and serving of a proposed report of Mr Huber prepared after Mr Huber has examined all of the documents he has identified as required by the regulatory environment for an IPO of M Inc, and which would be relevant and discoverable (if in the power, possession or control of the respondents) by the proposed amended pleading. 59 Apart from the affirmative case, put simply, of non-conformity with regulatory instruments said to render the para 4(a) representation misleading when variously made, the applicants rely on s 51A of the Act on the footing that the representation was as to a future matter, and M Inc did not have reasonable grounds for making the representation giving rise to the s 51A(1) consequence, aided by the proper construction and operation of s 51A(2). I do not propose to canvass in these reasons the proper construction and operation of those provisions having regard to the jurisprudence on that topic. 60 It seems to me that the proper course is to refuse leave to amend the further amended statement of claim of 26 April 2013 in the terms proposed by the SFASOC (being "DFC5" to Mr Cliff's affidavit). Rather, I give general leave to the applicants to amend the pleading of 26 April 2013 by filing and serving a consolidated fresh amended pleading that properly takes account of the matters discussed in these reasons (particularly at [48] to [59]) and which pleads all of the material facts (appropriately particularised) in one place upon which the applicants rely in seeking to establish the contended contravention of s 52 of the Act (on each basis upon which the applicants assert a contravention) said to arise out of the making of the pleaded representation at para 4(a). 61 For this purpose, the requirement to particularise the material facts does not presently extend to an obligation to particularise the content of each of the deficiencies in regulatory conformity as those matters, it is said, will be revealed by the detailed evidence of Mr Huber once his expert report is filed and served. However, to be clear, the process of providing the particulars, by means of Mr Huber's report, of the respects in which, for example, the accounts of M Inc and the other entities mentioned at [41] failed to comply, at the relevant date, with an identified accounting standard (or each regulatory instrument, legislative provision or SEC requirement), does not obviate the need to identify, for example, which accounts of which entities failed to conform with a particular regulatory prescription. 62 Pleading these matters in a fresh amended statement of claim will give rise to further discovery of the categories of documents contemplated by the various paragraphs of the interlocutory application recognising, of course, that paras (p), (q) and (r) deal with a different topic. It seems to me inappropriate to make orders for the discovery of those documents until the pleading is put in final form having regard to these reasons. However, it seems to follow that once the relevant matters have been pleaded, the categories of documents identified in the interlocutory application would be discoverable. 63 The respondents ought to proceed on the footing that the consolidated amended statement of claim will render the categories of documents discoverable. However, I do not propose to make an order in the absence of the final version of the pleading. I assume that it will not be necessary to re-agitate this matter at a later date. The respondents would, no doubt, prudently begin the process of gathering together documents that are likely to be made discoverable by the pleading. I am satisfied that the categories of documents described in the interlocutory application are not rendered discoverable on the state of the current pleading. The respondents say that they stand on the affidavit by way of discovery and that no inadequacy is demonstrated in the affidavit. The scope of discovery will plainly change once the pleading is consolidated and takes account of the amendments proposed. 64 I have had regard to the evidence of Mr Reidy from Johnson Winter Slattery concerning the extent of the documents examined to date to give discovery of approximately 8,000 documents. I have also had regard to Mr Reidy's evidence about the extent of the task involved in isolating further discoverable documents having regard to the likely content of the new amended consolidated statement of claim. I am also conscious of the delay to the timetable by the applicants being unable to file and serve the expert report of Mr Huber. 65 These considerations lead me to be concerned about whether the trial will be in a position to proceed in July starting on 14 July 2014. 66 I direct the parties to confer with a view to establishing a new directions timetable for the completion of the various steps leading to a trial commencing on 14 July 2014. The parties are directed to provide a proposed timetable to my Associate by Monday, 10 March 2014. I will then consider whether the matter is progressing in an orderly way to trial in July. If not, it may be necessary to vacate the July dates and allocate dates in September and October 2014. A trial of the matter can be accommodated in that period. However, it may be that the matter can proceed to trial on 14 July 2014. This matter will proceed to trial in 2014. I will not take the step of vacating the July dates but will consider the matter in the context of the revised timetable. 67 The documents described at para (q) are to be the subject of further discovery. 68 The costs of the interlocutory application are reserved for later determination. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.