Plaintiff v Defendants

1 Broadly speaking, this proceeding concerns the sale of a company, Joe White Maltings Pty Ltd ("Joe White")[1] to the plaintiff ("Cargill Australia"), for $420 million in late 2013. Prior to this acquisition, Joe White conducted a malting business ("the Joe White Business") and was owned by the defendants ("the Viterra Parties").[2]

2 During cross-examination of the second witness called on behalf of Cargill Australia, Aimee Breszee ("Breszee"), evidence was led of a proposed disposition ("the Proposed Disposition"), by way of sale or joint venture, of the global malt business ("Cargill's Malt Business") operated or ultimately controlled by the first third party ("Cargill, Inc"), including the Joe White Business.[3] Breszee gave evidence that valuations had been prepared in respect of the Proposed Disposition. In response to a call by the Viterra Parties, documents were produced ("the Confidential Documents"), but in redacted form. Upon the giving of confidentiality undertakings, the redacted Confidential Documents were made available to all opposing parties' counsel and external solicitors.

3 By summons dated 9 July 2018, Cargill Australia, Cargill, Inc and Joe White (together, "the Cargill Parties") sought to prevent any further disclosure and distribution of the Confidential Documents ("the Confidentiality Application").

4 By summons dated 10 July 2018, the Viterra Parties sought further discovery relating to the Proposed Disposition ("the Discovery Application"). The Viterra Parties also sought unredacted copies of the Confidential Documents.

5 The Confidentiality Application and the Discovery Application were heard together on 18 July 2018.[4] Although related to the Discovery Application, for reasons it is unnecessary to articulate here, the Confidentiality Application is subject to further argument and is not the subject of this ruling.

6 For the reasons set out below,[5] on 19 July 2018 I pronounced orders relating to paragraph 2 of the summons referable to the Discovery Application.[6] The balance of that summons overlaps entirely with the Confidentiality Application, and, by orders made on the same day, was adjourned to a further date.

7 The Cargill Parties commenced this proceeding in 2014, alleging that the Viterra Parties engaged in misleading or deceptive conduct in relation to the sale of Joe White. Further claims are made by way of breach of warranties contained within the acquisition agreement executed on 4 August 2018 ("the Acquisition Agreement"), for breach of duty of care and by way of deceit.

8 The facts of this proceeding are set out in detail elsewhere.[7] For present purposes, it suffices to note the Cargill Parties allege that, prior to acquisition, the Joe White Business employed a number of practices in the production of malt which were in breach of its customer contracts ("the Viterra Practices"). Broadly speaking, it is alleged that the Viterra Parties deliberately withheld the nature and extent of the Viterra Practices from Cargill Australia and Cargill, Inc prior to the acquisition of Joe White and that, upon putting an end to the practices, Cargill Australia suffered loss.

9 In respect of its claims made by way of misleading or deceptive conduct, breach of duty of care and deceit, Cargill Australia particularises its loss as follows:

The difference between the [p]urchase [p]rice and the true value of the [b]usiness and the [s]hares. Alternatively, the difference between the [p]urchase [p]rice and the price that Cargill Australia would have paid for the [b]usiness and the [s]hares if the [alleged misrepresentations] had not been made.

10 Further, in respect of its claims for breach of warranties and the Acquisition Agreement, the loss is particularised with reference to the loss identified in the preceding paragraph, and further as follows:

(A) [Joe White] has suffered and continues to suffer ongoing lost production. ...

(B) The [b]usiness has incurred and continues to incur additional expenditure in an attempt to supply malt which complies with customer contracts ...

(C) Cargill Australia may be able to offset some of its losses by investing significant capital expenditure for extra storage and blending capacity to enable malt to be blended into specification ...

11 Cargill Australia also claims loss by reason of other events, including by way of breach of a duty to inform Cargill Australia of the termination of a contract held by Joe White. It also makes a further claim of misleading or deceptive conduct in relation to alleged representations made as to the bid value required to secure the acquisition of Joe White. These additional heads of loss are not relevant to the Discovery Application.

12 As at the date of this ruling, Cargill Australia had not yet concluded calling its lay witnesses. The current approach is for expert evidence to be led at the conclusion of all lay evidence. On present estimates, this will not be until at least October 2018.

13 Various expert reports have been prepared on behalf of the parties, including a joint expert report ("the Joint Expert Report") dated 29 June 2018, prepared by Greg Meredith ("Meredith") and Gordon Klein ("Klein"), the Cargill Parties' experts, and Michael Potter, on behalf of the Viterra Parties ("Potter").

14 Before the Joint Expert Report, Meredith prepared a standalone report dated 21 February 2018 ("the Meredith Report"). That report sets out Meredith's opinion as to the "true or market value" of Joe White as at 4 August 2013 (the date of execution of the Acquisition Agreement) and 31 October 2013 (the date of completion of the Acquisition Agreement), and is said to adopt a "true value valuation" consistent with the approach in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd.[8]

15 Two points made in the Meredith Report need to be noted.

16 First, Meredith states that he has been provided with "limited data after [financial year 2015] for [Joe White]'s financial performance". Such data is identified as information that may materially affect his opinion, in particular because he says he is "unable to form a concluded view as to whether the reduction in sales volumes in [financial year 2016] relates to the Viterra Practices and the Viterra Policies[9] or an unrelated matter".

17 Secondly, Meredith explains that, for the purposes of his valuation, he used actual data post acquisition "as a proxy of what [Joe White]'s sales volumes would have been had the Viterra Practices and Viterra Policies been disclosed" prior to the execution or settlement of the Acquisition Agreement. As he notes, this implicitly assumes that any difference between the forecasted sales volumes contained within the information memorandum prepared for the purposes of the sale of Joe White and the actual sales volumes achieved is "related to the Viterra Practices and the Viterra Policies".

18 The Joint Expert Report sets out areas of agreement and areas of disagreement between the 3 experts. The areas of agreement comprises 2 pages, with 151 pages setting out differences of opinion. Under the heading "The cause of the decline in [Joe White]'s sales post-acquisition and the developments in the industry", Meredith repeats his qualification with respect to the limited financial data provided after financial year 2015, and the result of that being that he was unable to form a concluded view as to whether the reduction in sales volume in financial year 2016 was related entirely to the Viterra Practices and the Viterra Policies.

19 Under the same heading, Potter notes that, as Cargill, Inc operates a global malting business:

It may be that declines in sales reported by [Joe White] reflected a re-organisation of [Cargill's Malt Business] following its acquisition of [Joe White] such that [Joe White]'s existing clients were provided with malt from plants operated by [Cargill, Inc] other than those that were operated by [Joe White]. Neither Meredith nor Klein undertake any analysis from which it has been established that this did not occur.

20 Potter further criticises the approach taken by Meredith, suggesting that, having relied on actual sales for the purposes of assessing the "true value" of Joe White, Meredith should have undertaken an analysis of sales on a customer-by-customer basis in order to explain the decline in sales. In the absence of such an analysis, Potter considers it inappropriate to assume, as Meredith has, that the entirety of the observed decline in post-acquisition sales is attributable to the Viterra Practices and the Viterra Policies, and not some other extraneous explanation.

21 Breszee was called to give evidence on 26 June 2018.[10] Under cross-examination, she gave evidence that she had become aware that Cargill, Inc was "presently taking ... steps to sell or merge or enter into a joint venture or otherwise dispose of [Cargill's Malt Business]".

22 Asked whether she was aware of any valuations prepared within Cargill, Inc for the purposes of the Proposed Disposition, Breszee said that the corporate strategy and development team within Cargill, Inc had prepared a valuation "a couple of months ago" and were in the process of preparing a further valuation. Breszee said that the valuation related to Cargill's Malt Business as a whole, and included a component relating to the Joe White Business.[11]

23 A call was made for the documents referred to by Breszee. The Confidential Documents produced in response to the call consist of 2 documents ("Confidential Document A" and "Confidential Document B"). Confidential Document A is a document relating to the value of Cargill's Malt Business. Confidential Document B contains a component of that valuation, said to include information referable to the Joe White Business. Both documents were produced to the court, in their unredacted form, on 2 July 2018.

24 In submissions made on 2 July 2018, the Cargill Parties objected to production of the Confidential Documents in an unredacted form to the other parties in the proceeding.[12] It was alleged "Confidential Document A is clearly not relevant to the proceeding and the issues as between the parties". With respect to Confidential Document B, which the Cargill Parties described as containing "a number instructed to be part of the global figure allocated to the Joe White Business", it was said the document "may be relevant to the issues in dispute", but the Cargill Parties continued to press that it was not.[13]

25 As noted above, the Confidential Documents have now been provided in their redacted form to counsel and external solicitors for each of the parties to the proceeding, subject to confidentiality agreements.

26 Evidence has since been given by other witnesses at trial to the effect that Cargill, Inc has taken steps in relation to the possible disposition of Cargill's Malt Business and has prepared valuations in this regard, albeit preliminary in nature. Although the nature and extent of the steps taken remains unclear, there is no question that the Proposed Disposition is seriously being contemplated.

27 Relevantly, the Discovery Application sought an order that the Cargill Parties:

[M]ake discovery of and produce for inspection any documents recording, forming part of or referring to any valuations prepared since 1 October 2017 of Cargill's [M]alt [B]usiness and/or the business operated by Cargill Malt Asia Pacific (formerly [Joe White]), and any documents recording the inputs, instructions or assumptions prepared or provided for the purpose of such valuations, including, in each case in relation to any proposed transaction concerning Cargill's Malt Business:

(a) Any information memoranda or any similar documents;

(b) Any offers or proposals whether formal or informal, made to or from any prospective party;

(c) Presentations to, and minutes, of any meetings of:

(i) the Food Ingredients & BioIndustrial Platform;

(ii) the Board of Directors of Cargill, Inc.

28 The Viterra Parties contended the documents sought are relevant to the determination of the issues in the proceeding, including the loss or damage claimed to be suffered by the Cargill Parties as the result of its acquisition of Joe White. In particular, it was contended that documents concerning the valuation of Cargill's Malt Business are relevant in 3 respects:

(1) Whether the addition of Joe White to Cargill's Malt Business was itself valuable, so as to create synergies and enable Cargill, Inc to complete its "global footprint".

(2) Whether Cargill Australia would have purchased Joe White regardless of any alleged lack of knowledge of the Viterra Practices and the Viterra Policies.

(3) The extent to which the current and projected financial position and performance of Joe White has been affected by the matters the subject of the Cargill Parties' claims or other unrelated matters.

29 The Viterra Parties also contended the documents might assist in explaining matters left unresolved by the Joint Expert Report.

30 In submissions filed in opposition to the Discovery Application, the Cargill Parties contended no discovery orders should be made, because:

(1) Cargill, Inc's assessment of the current value of Cargill's Malt Business or Joe White is irrelevant.

(2) Details of any sale or other transaction being contemplated by Cargill, Inc are irrelevant.

(3) To the limited extent that post-acquisition financial evidence can be relevant to the assessment of the value of Joe White at the time of acquisition:

(a) The experts have been provided with post-acquisition financial records through to May 2017, and there is no suggestion that any expert has requested further documents.

(b) The terms of the Discovery Application are not directed to underlying financial records in any event.

(c) Case management considerations militate against the "broad and peripheral " discovery sought during trial.

31 The Cargill Parties also relied on evidence filed in support of the Confidentiality Application for the purposes of the Discovery Application. That evidence included:

(1) A notarised statement dated 29 June 2018 of Eric De Munter ("De Munter"), the vice president of Cargill, Inc's corporate strategy and development group.

(2) An affidavit of a senior lawyer at Cargill, Inc, Brooke Tassoni ("Tassoni"), sworn 1 July 2018.

(3) An affidavit of a senior lawyer at Cargill, Inc, Douglas Udjur ("Udjur"), sworn 9 July 2018.

32 De Munter 's statement was directed towards the Confidential Documents, and said those documents contained "only preliminary estimates which are based upon incomplete assumptions and partially-accurate inputs". He contended, therefore, that they were not reliable indicators of the value of Cargill's Malt Business. Further, he attested that release of documents containing Cargill, Inc's preliminary valuation work would significantly impair and prejudice Cargill, Inc's ability to "fairly compete",[14] and would "materially undermine [its] negotiation position with potential counterparties" in any "strategic process". Significantly, however, after seeking to downplay the reliability of the Confidential Documents, De Munter stated the information was commercially sensitive because it included margins, historical volumes, detailed input costs and details of strategic projects.

33 Tassoni's affidavit identified the Confidential Documents as the documents referred to by Breszee during her evidence, and referred in particular to the contents of Confidential Document A as "highly confidential and commercially sensitive".

34 Udjur's evidence was similarly directed towards the Confidential Documents. He stated that the exercise of preparing the Confidential Documents had been "preliminary in nature and rested on non-specific cost allocations, limited forecasted numbers and other general, unvalidated assumptions". Udjur described the Confidential Documents as "high level pulse checks intended only for internal consumption".

35 Udjur further stated that the Confidential Documents were considered by Cargill, Inc to be highly confidential and highly proprietary. Disclosure of the Confidential Documents, especially to Cargill, Inc's competitors, was said to be likely to lead to adverse implications, including by way of third parties being discouraged from transacting with Cargill, Inc in particular ways, or at all. It was further said:

Those companies who are in the same industry may be particularly well-placed to use the information for their own purposes and contrary to the interests of Cargill's [M]alt [B]usiness. I cannot say how they would use the information, but it is almost like a mosaic. Every little piece of information may assist in painting a fuller picture. Moreover, the puzzle pieces of any valuation exercise, even if preliminary, contain commercially-sensitive inputs such as margins, historical volumes and costs, which, if disclosed, could significantly impair and prejudice [Cargill, Inc]'s ability to compete even outside of the malt business.

36 Shortly before the Discovery Application and the Confidential Application came on for hearing, the Viterra Parties filed a short affidavit sworn by Matthew Weber ("Weber"), the group counsel for the fourth defendant, Glencore International AG ("Glencore"). In his affidavit, Weber swore that none of the Viterra Parties, including the ultimate parent company Glencore, "own or have any interest in any company that engages in the malting of barley since the sale of Joe White", and that they "possess no plan or present intention to invest in or acquire a malting business" (emphasis added).

37 A short affidavit filed in response by the Cargill Parties exhibited a number of screenshots of Glencore's website which included information about Glencore's agricultural business and where it operates. Those screenshots demonstrate that Glencore's agricultural business has facilities throughout North and South America, Europe and the east coast of Australia, with offices in those regions and others, including Africa, China, India, Japan, Vietnam, Singapore and South Korea. They also show that Glencore presents itself as a "market leader in originating, handling, processing and marketing agricultural commodities", including barley. However, there was nothing in this evidence that suggested Glencore had any present involvement in malting.

38 Rule 29.08(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides:

Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating:

(a) Whether that document or any, and if so what, document or documents of that class is or has been in that party's possession: and

(b) If it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it.

39 Whether further discovery should be ordered requires, in the exercise of the court's discretion, a balancing exercise of competing factors. Further, orders made pursuant to r 29.08 are not to be made lightly.[15]

40 The relevance of documents to the proceeding is a threshold factor to be considered. If documents sought to be discovered are not relevant to the proceeding then there is no basis for ordering their production. Further, even if the documents are relevant, issues may arise if the documents sought are commercially sensitive. It was not in dispute that, in relation to confidential documents, the factors to be considered are as follows:[16]

(1) The degree of relevance of the document or documents.

(2) The extent to which the document or documents are confidential, including whether the information has already been disclosed in the proceeding.

(3) The use to which the information might be put once it is known, such as by an opposing party who is a trade rival or is also an opposing party in another proceeding (or an anticipated or pending proceeding).

(4) The utility or procedural fairness, or otherwise, of imposing restrictions or conditions, including limiting production to certain persons upon the provision of confidentiality undertakings.

(5) Any other matters relevant to the due administration of justice, including ensuring compliance with the overarching purpose in the Civil Procedure Act 2010 (Vic).[17]

41 For completeness, the obligation to discover documents is ongoing.[18] If a new issue arises or a further fact relevant to the proceedings occurs, it may be that a party is required to provide further discovery even though it had previously complied with its discovery obligations.

42 With respect to the claims made by Cargill Australia based on misleading or deceptive conduct, reliance is placed upon s 236 of the Australian Consumer Law.[19]

43 In the context of misleading or deceptive conduct in the sale of shares or a business, the usual rule is that damages are to be assessed by reference to the difference, as at the date of sale,[20] between the price paid for the shares or the business and its "real" or "fair" value.[21] This is sometimes[22] referred to as "the rule in Potts v Miller".[23] That "rule" is subject to certain qualifications:

(1) The rule is not universal, inflexible or rigid.[24]

(2) The question of the "real" or "fair" value of the shares or business is not a question of "market value", especially where the market value of the shares or business might be the result of any improper practice on the part of the defendant.[25]

(3) The real or fair value of the shares or business must be ascertained "in the light of the events which afterwards happened, because those events may show, for instance, that what the shares might have sold for was not their true value or that it was a worthless company".[26]

44 When taking into account events after the date of acquisition, the court must distinguish between possible causes of the decline in value of the shares or business, and not treat any independent, extrinsic, supervening or accidental cause as being the consequence of the misleading or deceptive conduct.[27]

45 A similar principle applies with respect to the tort of deceit.[28]

46 An alternative approach to the rule in Potts v Miller, which may be applied for the purposes of ascertaining the amount of a damages award pursuant to s 236 of the Australian Consumer Law, is to measure damages in the amount of the difference between the purchase price of the shares or business and the value of whatever is left in the plaintiff's hands.[29]

47 The "left in hands" approach may be a more appropriate measure of damage where there is less need to separate out losses resulting from extraneous factors arising post-acquisition,[30] or where in the circumstances of the case, by reason of the defendant's conduct, the plaintiff has been "locked into the property".[31]

48 Although Cargill Australia has adopted the Potts v Miller approach in the particulars to its statement of claim,[32] and in its expert evidence prepared to date,[33] the Viterra Parties have not formally elected which approach would be appropriate to any assessment of damages. In particular, although it was conceded it has not been pleaded, they have foreshadowed that, after all evidence has been heard, they may contend that the "left in hands" approach would be more appropriate if Cargill Australia were to succeed on liability.

49 Finally on this issue, there was no discussion in the parties' written submissions or in oral argument concerning the principles applicable to the assessment of damages for the claims based on breach of contract and duty of care. Accordingly, these matters will not be addressed in this ruling.

50 The documents sought by the Viterra Parties are relevant to the issues in dispute in the proceeding for a number of reasons. Not only are they directly relevant to the "left in hands" approach to calculating loss and damage in the context of misleading and deceptive conduct, they are also relevant to the Potts v Miller approach.

51 As to the first of these approaches, the fact that this approach to calculating loss or damage has not been relied upon by any party in their pleadings to date is of little moment. The evidence that Cargill, Inc is considering the Proposed Disposition, and has undertaken valuations in connection with this course, has only recently come to light. The Viterra Parties are entitled to adjust the way in which they conduct their case if fresh evidence surfaces, subject of course to issues relating to a fair trial. There could be no suggestion of material prejudice to the Cargill Parties if the "left in hands" approach were adopted.

52 As to the Potts v Miller approach, the documents sought are likely to disclose matters relevant to the conduct of Cargill's Malt Business (which includes the Joe White Business), which, in turn, may demonstrate the cause or causes of the state and performance of the Joe White Business after its acquisition was completed on 31 October 2013. The lapse in time between Cargill Australia taking over the Joe White Business and the more recent events that have come to light does not mean the evidence is too remote so as to make the documents sought not relevant to the issues at hand. By way of example only, the witness statements filed by Cargill Australia show that events as late as 2016 are intended to be relied upon.[34]

53 In deciding in favour of the Viterra Parties with respect to the Discovery Application, the confidentiality of the documents in question has been taken into account. By commencing and prosecuting its case, Cargill Australia has necessarily opened up for scrutiny the manner in which the Joe White Business has been conducted. The evidence at trial has demonstrated there has been a considerable overlap between the way the Joe White Business has been conducted from 1 November 2013 and the manner in which other malt businesses of Cargill, Inc are operated. Further, it would be exceptional to prevent the Viterra Parties altogether from having access to information which may play a substantial part in the assessment of loss in this case.[35] Furthermore, evidence at trial shows that the fact that Cargill, Inc is contemplating the Proposed Disposition is already public knowledge.

54 Also with respect to the issue of confidentiality, Cargill, Inc and Glencore are not strictly trade rivals. Although they were rivals in the malt business in the past, albeit to a limited extent, and there is a possibility that they will compete in the future with respect to malt, presently Glencore is not in the malt producing industry.

55 Despite these matters, given the significant issues raised by the Cargill Parties in respect of confidentiality and commercial sensitivity, the orders made on 19 July 2018 were in a modified form. Although the orders required a list of documents responsive to the Discovery Application to be filed and served, they did not require immediate production for inspection. Rather, the parties were directed to confer with respect to an appropriate confidentiality regime.

56 It is for these reasons that orders were made substantially in the form sought in the Discovery Application.[36]

[1] Joe White, the 2nd third party in the proceeding, is now known as Cargill Malt Asia Pacific Pty Ltd.

[2] As to the relationship between the Viterra Parties, see Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126, [2] (Daly AsJ).

[3] On the evidence, it is unclear whether it is intended to sell the Joe White Business itself, or the shares in Joe White. Nothing turns on this.

[4] Orders made on 5 October 2017 require the parties to obtain leave of the court before filing any further interlocutory application in this proceeding: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 5) [2017] VSC 798, [8]-[11]. Given the significance of the issues raised, leave was granted at the outset of the hearing in respect of both applications.

[5] Brief oral reasons were provided in respect of orders made in the Discovery Application on 19 July 2018. At the time, I indicated revised reasons, if requested, would be provided in due course. These are those reasons.

[7] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [6]-[9]; Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126, [2]-[28].

[8] [2004] HCA 54; (2004) 217 CLR 640: see pars 43-44 below.

[9] "The Viterra Policies" refers to the policy documents which are alleged to have recorded and endorsed the Viterra Practices.

[10] Breszee is, and at all material times was, an employee of Cargill, Inc's "Technical Accounting Centre of Expertise".

[11] None of this cross-examination was, quite correctly in my opinion, the subject of objection.

[12] Reliance was placed on Choo Cheng Kui v Quinn (1984) 11 FCR 217, 219.3 (Fox J), 228.2 (Beaumont J).

[13] The Viterra Parties submitted that, on the evidence put forward by the Cargill Parties, Confidential Document B appeared to be a document created for the purposes of the litigation in order to respond to the call, rather than being a business record of Cargill, Inc. It is unnecessary to decide this matter.

[14] Cargill's counsel described this as "perhaps an odd choice of words", and submitted they were intended to refer to being able to "compete in a sale process".

[15] Olympic Airways SA v Alysandratos (unreported, Supreme Court of Victoria, Harper J, 26 May 1997), 8-9.

[16] IOOF Holdings Ltd v Maurice Blackburn Pty Ltd (No 2) [2016] VSC 594, [10].

[17] Section 7.

[19] Competition and Consumer Act 2010 (Cth), schedule 2. Section 236(1) provides:

(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b) the conduct contravened a provision of Chapter 2 or 3 [which includes s 18 of the Australian Consumer Law];

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

[20] There may be different views as to whether the relevant date for the determination of loss is as at the date of execution of the contract of sale, or as at the date of settlement: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, 650 [15] (Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ). For present purposes, and as acknowledged during argument, nothing turns on the distinction.

[21] HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, 656-659 [34]-[40].

[23] [1940] HCA 43; (1940) 64 CLR 282.

[24] HWT Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, 656-657 [35], 667 [65].

[26] Ibid, 658 [38], citing Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, 299.6 (Dixon J).

[27] HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, 659 [40].

[28] Gould v Vaggelas (1984) 157 CLR 215, 220.3 (Gibbs CJ), 241.3 (Wilson J), the former referred to in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, 659, fn 79.

[29] HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640, 666-668 [63]-[65].

[31] Ibid 668 [66], citing Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1996] UKHL 3; [1997] AC 254, 267C (Lord Browne-Wilkinson, with whom Lords Keith, Mustill and Slynn agreed).

[32] See par 9 above.

[33] See par 14 above.

[34] In light of these findings, it is unnecessary to consider whether the documents are also relevant to the issues identified in par 28(1) and 28(2) above.

[35] Cf Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, [45] (Brereton J), referring with approval to Roussel Uclaf v Imperial Chemical Industries Plc [1990] FSR 25, 29-30 (Aldous J).

[36] In my view, the proposed orders were too wide in a particular respect. As this was not the subject of argument it was raised with the parties before the orders were made on 19 July 2018.