NATIONAL FIRE & SECURITY LIMITED v WESTPAC NZ LIMITED [2013] NZHC 2115

NATIONAL FIRE & SECURITY LIMITED v WESTPAC NZ LIMITED [2013] NZHC 2115 [20 August 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-2696[2013] NZHC 2115BETWEEN NATIONAL FIRE & SECURITYLIMITEDPlaintiffAND WESTPAC NEW ZEALAND LIMITEDDefendantHearing: 5 August 2013Appearances: M C Black and J Waugh for PlaintiffM Eastwick-Field for DefendantJudgment: 20 August 2013REASONS FOR JUDGMENT OF ASSOCIATE JUDGE BELLThese Reasons for Judgment were delivered by me on 20 August 2013 at 3:00pmpursuant to Rule 11.5 of the High Court Rules....................................Registrar/Deputy RegistrarSolicitors:Daniel Overton & Goulding, Auckland, for PlaintiffRussell McVeagh, Auckland, for DefendantCounsel:M C Black, Auckland, for Plaintiff[1] On 5 August 2013 I heard Westpac's application for orders requiring NationalFire & Security Ltd to comply with current discovery orders, and for orders fixing the terms on which confidential documents may be disclosed to National Fire &Security Ltd. In the hearing I gave oral rulings on different parts of Westpac'sapplication. This decision incorporates those rulings.What the case is about[2] National Fire & Security Ltd was a customer of Westpac. Between 1 January 2004 and 28 February 2009 Mr Martyn Scott, an accountant employed by the plaintiff, is alleged to have embezzled $1,410,011.76. Mr Scott was authorised tomake payments for National Fire & Security Ltd using Westpac's DeskBank payment system. Westpac's DeskBank banking product allowed for electronic banking. The DeskBank system is installed on a customer's computer system andmay be integrated with a customer's accounting systems, such as MYOB. NationalFire & Security Ltd alleges that Mr Scott made 398 payments from its Westpac account using the DeskBank system by directing payments to five Westpac accounts of his and, in addition, seven payments were made directly to Mr Scott's personalcreditors. Mr Scott is alleged to have arranged for payments to go to named payees, ostensibly third parties, but the payee accounting details were changed so that the payments in fact were for the benefit of Mr Scott personally.[3] National Fire & Security Ltd says that the DeskBank system provides reports called transmitted payments batch detail reports. The reports are made after payments have been made on the DeskBank system and show the named payees and also the accounts into which payments were made. Mr Scott had five bank accounts at branches of Westpac and payments of funds from National Fire & Security Ltdwere made into those accounts. It says that Westpac's role is that of both paying bank and receiving bank.[4] National Fire & Security Ltd says that Westpac is responsible for its losses. Its case is that there is a flaw in the DeskBank system, because Westpac ought tohave but did not check that the accounts into which the payments were made belonged to the named payees.[5] National Fire & Security Ltd has pleaded a range of causes of action. For this decision it is not necessary to consider the particular causes of action closely. The amount claimed by National Fire & Security Ltd is $1,056,822.91. It says that its gross loss was $1,752,143.32. In addition to the $1,410,011.76 embezzled by Mr Scott, it says that it has also incurred direct costs of $342,131.56 comprising interest, bank charges, forensic accounting, bank investigation and legal fees. It has recovered $695,320.41 from Mr Scott, giving a net loss of $1,056,822.91.[6] Westpac is defending the proceeding fully. It denies liability. It says that the DeskBank system is installed on the computer system of National Fire & Security Ltd, so that it is not the one responsible for the payments. It denies that it is required to check account names against account numbers. Some of the causes of action are statute-barred, at least to some extent. It alleges contributory negligence. It also says that its general terms of business exclude any claim by National Fire & Security Ltd.[7] Early in the proceeding the parties agreed on tailored discovery and agreed on schedules of documents to be provided.[8] Westpac provided an extensive affidavit of documents. That affidavit contains two claims for confidentiality. One claim is for confidential information ofthird parties. Westpac's proposal for that is that certain parts of certain documents becovered up. It also claims that other documents are confidential because they are commercially sensitive and contain trade secrets. The third schedule, listing those confidential documents, runs for 45 pages in the affidavit of documents.Westpac's application[9] The orders initially sought by the defendant were wider, but by the hearing the matters to be decided were reduced. Westpac sought:1. An order requiring National Fire & Security Ltd to disclose documents within P8 of the agreed schedule for tailored discovery:Details of the plaintiff's PAYEE library within DeskBank,MYOB and any previous accounting system used by the plaintiff, including the full legal name of the payees.2. A direction that National Fire & Security Ltd clarify whether it is seeking the entirety of its direct costs in paragraph 17 of its amended statement of claim and, if so, whether additional documents relating to those costs need to be discovered.3. An order allowing it access to National Fire & Security Ltd'scurrent computer server and its old computer server.4. An order fixing the terms for confidential undertakings for thedisclosure of the defendant's documents said to be confidential.Disclosure of P8 documents[10] National Fire & Security Ltd no longer contested this part of Westpac'sapplication. It had initially opposed on the basis that these documents could not be relevant, even though it had agreed to their disclosure when it had agreed on tailoreddiscovery earlier in the proceeding. Westpac's case is that the documents arerelevant to its defence that it could not have checked the payee names against payee account numbers (as National Fire & Security Ltd alleges it should have).1National Fire & Security Ltd's claim for direct costs[11] The plaintiff has claimed $342,131.56 as direct costs incurred as a result of the fraud by Mr Scott. That global sum is said to be made up of bank interest, bank charges, costs of forensic accounting, bank investigation and legal fees. Westpac says that the documents discovered by National Fire & Security Ltd show direct costs amounting to $194,538.22. That leaves a balance of $137,593.34 for which no1 Westpac's statement of defence, paragraphs 15(a)(ii) and 49(a).documents have been discovered. Some discussion between the parties clarified the matter. Mr Black said that at the outset of the claim the interest costs and bank charges were calculated on one basis but further analysis had been carried out, which showed that the amount claimed for interest and bank charges is less than the initial calculation. At present, the claim by National Fire & Security Ltd is limited to the sum of $194,538.22.[12] Mr Black made the point that the calculations had been carried out in-house by National Fire & Security Ltd. It proposes to instruct an independent accounting expert to go over the claims for interest. It reserves the right to amend the amounts it is claiming.[13] It appears that the relevant bank statements are available to both sides. Both sides are in a position to carry out calculations to establish the additional interest charges that National Fire & Security Ltd had incurred on account of Mr Scott'salleged fraud.[14] With that clarification, Ms Eastwick-Field indicated that Westpac did not seek any further orders on this aspect of its application. I leave the parties to refine their calculations. Without giving any directions, I encourage both parties toexchange their accountants' reports once the calculations of interest have been finalised. That is a matter on which an exchange of experts' reports plus, ifappropriate, any conference between the experts could well narrow matters in issue.[15] In the circumstances no order is required on this aspect of the case, but leave will be reserved to come back to court if further directions are required.Access to National Fire & Security Ltd's computers[16] Westpac has identified classes of documents for which it seeks further discovery. The way it wants to carry out its discovery is to access computer servers of the plaintiff and have a computer expert carry out a search of the contents andretrieve information from those servers. Westpac's in-house lawyer, Mr Hendriksen, has identified the classes of documents as follows:(a) National Fire & Security Ltd's current payee library held in itsaccounting system, MYOB.(b) Any information relating to any of National Fire & Security Ltd'spayee library and MYOB, DeskBank or any other accounting system used by National Fire & Security during the period of the fraud byNational Fire & Security Ltd's former employee, Mr Scott.(c) Reports generated by the DeskBank product of National Fire & Security Ltd during the period of the fraud including any audit and transmitted batch payment detail reports.(d) Any documents saved elsewhere on the server (for example, on the desktop) containing data exported from MYOB for importing into DeskBank.[17] Earlier in the proceeding, the parties had agreed on the terms for tailored discovery by both parties. I am advised that the documents within (a), (b) and (c) are within the scope of the agreed tailored discovery. Ms Eastwick-Field concedes that documents in (d) may be outside the original scope of agreed discovery. Nevertheless I am satisfied that that class of documents is also relevant, perhaps marginally so. Mr Black did not strongly contest that that class of documents ought not to be discovered. Mr Black said that at least so far as documents within (a) are concerned, National Fire & Security Ltd had already discovered ring-binders of documents. Nevertheless, for the plaintiff Mr Black did not resist orders along the lines sought by Westpac.[18] On that, the plaintiff is being more accommodating than the rules might require. When an application is sought to inspect the contents of a computer, any order is normally made under r 9.34 of the High Court Rules, the provision for inspection of property. Such an application needs to be made on notice to the person who holds the item of property which is to be the subject of an inspection. I am informed that there are two servers. The old server is no longer available – it wasreplaced after Mr Scott's fraud was discovered but apparently the Serious Fraud Office has a clone of that old server.[19] An application under r 9.34 would need to be served on the Serious FraudOffice to obtain that office's consent to inspection of a clone of any server held by it.Be that as it may, the plaintiff does not want to stand in the way of Westpac on this point.[20] Similarly, orders under r 9.34 are normally only made if there is good reason why the ordinary processes of discovery would not be adequate. Again, that does not seem to be a point taken by the plaintiff. It seems to be approaching the matter on the basis that it has nothing to hide and will not stand in the way of Westpac carrying out these searches so long as they are properly focused.[21] Accordingly, I give directions for the service of the documents within paragraph 4 of Mr Hendriksen's affidavit sworn on 30 July 2013. I have beenadvised that Westpac proposes that it would have one of its own staff, plus an independent computer consultant, carry out the searches. Westpac accepts that when it carries out that inspection of the computer systems the plaintiff will be entitled to have its own computer expert available to supervise the inspection. In the hearing the parties were not able to take matters much further beyond that.[22] It seems to me that it will be necessary for the parties to agree a protocol for the inspection to be carried out, so that both parties have a clear view as to what is to be carried out, to enable both sides to compare the process against what has been agreed to be carried out. Ms Eastwick-Field says that the data sought to be retrievedis likely to be held in DeskBank, that is, Westpac's electronic payment system installed on the plaintiff's computer system, and on the plaintiff's own MYOBsystem, and it may also be possible that data is stored in some area of limbo between the two.[23] Westpac seeks access not only to the old computer system which is now held in a cloned version by the Serious Fraud Office, but also the current computer held by the plaintiff. Mr Black made the point that once Mr Scott's fraud came to lightthe plaintiff replaced its computer system. He said that there would be nothing relevant in the current computer. Notwithstanding that, Westpac wants to be thorough. So long as there are proper safeguards put in place, I can see no objection to Westpac searching the current computer as well.[24] The parties also addressed me on the form in which the information will be retrieved. It appears that the information can be retrieved either in hard copy or on electronic copy. That is a matter that the parties should agree between themselves in their protocol and only come back to court if further directions are required. I do emphasise, however, that the process should be carried out with transparency and the information retrieved should be available to both parties.[25] On costs neither side disagreed with my suggestion that each side pay its own costs for this exercise, with the costs of inspection to be reviewed once the final outcome of the proceeding is known.Confidentiality of documents of Westpac New Zealand Ltd[26] Westpac's very extensive affidavit of documents contains a 45 page scheduleof documents for which it claims confidentiality. The schedule starts:The following documents are commercially sensitive, contain trade secrets or otherwise contain information of such a confidential or sensitive nature that inspection of them is unnecessary in all the circumstances, or should be given only on terms restricting access to the documents and their contents whether by undertaking or order of the court.[27] Westpac's position is that it is prepared to allow disclosure to a limitednumber of people, on terms that express undertakings are given. Part of the dispute is as to the appropriateness of the limitations on disclosure proposed by Westpac. The parties exchanged correspondence but they were not able to reach agreement.[28] There is, however, a preliminary issue. The plaintiff takes the point that Westpac has not sufficiently laid the ground for confidentiality. It says that there is not a firm enough evidential foundation and that the nature of the documents is not disclosed. It said that the nature of the documents should be disclosed on anindividual basis whereas Westpac has made a global claim for confidentiality for the entirety of the documents.[29] There is some basis in authority for the claim by National Fire & Security Ltd that documents should be assessed individually rather than on a global basis. In Port Nelson Ltd v Commerce Commission,2 the Court of Appeal said:An order for non-disclosure can only be made when the court is satisfied in terms of r 312 that such an order is necessary. It must be either apparent from the document in question or shown by other evidence that disclosure would be likely to prejudice the party in some significant way. Even the possibility of prejudice may be sufficient but that will depend on the seriousness of the possible prejudice and on 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.It follows that the documents must be approached on a one by one basis. This is the responsibility of counsel. In the vast majority of cases counsel should be able to agree whether or not a document such as to require special protection bearing in mind the restrictions on the use of discovered documents which apply in any event. Where there is some genuine point of difference which warrants referral to the court then the judge can decide. Such referrals should be rare where experienced counsel are involved.[30] The challenge by National Fire & Security Ltd to the confidentiality of documents claimed by Westpac New Zealand Ltd has arisen somewhat obliquely. Normally, where a party claims confidentiality for a class of documents and sets out that claim within its affidavit of documents, an application is made under r 8.25 for the claim of confidentiality to be tested. National Fire & Security Ltd has not filed such an application. Instead, the challenge has arisen in the course of National Fire & Security Ltd resisting the proposals by Westpac for protecting confidentiality. Because it has been approached that way, Westpac did not appear to fully appreciate that there would be a full-scale challenge to its claim to confidentiality. Nevertheless, the notice of opposition by National Fire & Security Ltd did at least give some indication that the matter would be an issue.[31] It is because the matter has arisen in that rather oblique way that Westpac has given only generalised evidence as to its claim for confidentiality. The most direct evidence on the point is found in the reply affidavit of Mr Hendriksen at [13]:2 Port Nelson Ltd v Commerce Commission (1994) 7 PRNZ 344 (CA) at 348-349.Westpac's suggested approach to confidentiality needs to be considered inthe context of NFS's claim. That claim focuses on whether Westpac's DeskBank product had appropriate features to either prevent NFS's formeremployee from allegedly stealing from it or to otherwise enable the payment to be verified by reference to the payee name. Given the width of the claim, it is readily apparent that any documents held by Westpac that relate to itsproducts' security, features or functionality will be commercially sensitive toit. Examples of such sensitive documents (including the affidavit of documents as Confidential Documents) would be risk assessments and other reports relating to its operation and security features, Westpac internal IT manuals, and other software reviews or documents containing details ofDeskBank's operation. Westpac is concerned to ensure that the disclosure ofsuch documents to third parties is limited as much as possible to avoid therisk of prejudice to Westpac's interests.[32] This case concerns Westpac's DeskBank product system for electronicpayments which enables Westpac's customers to make electronic payments ratherthan rely on cheques. It appears that the system has been developed over a number of years and there have been various reviews of the system. It is important that there be integrity to an electronic payments system. It is obviously important that such a system be secure from unauthorised interference. As such, any electronic banking system is going to have security features to protect the integrity of electronic payments. Therefore it is the nature of the matter that such a system would have security features which should be protected against disclosure to third parties. The risk of disclosure is that ways may be found to interfere with the electronic banking system, potentially at worst to allow for payments to be diverted away from their intended destination. It is important that any information of an electronic banking system relating to its functionality be protected from unauthorised disclosure. As such, there is a very high value in protecting that information.[33] I accept that Mr Hendriksen's affidavit sufficiently discloses the nature of thedocuments in which confidentiality is claimed, and that there is a proper basis for claiming protection against unauthorised disclosure. I bear in mind that the Court of Appeal recommended assessment of confidentiality on a one-by-one basis. I doubt that the Court of Appeal had in mind that the number of documents might extend to some 45 pages. I note that in the Port Nelson decision only 55 documents were in issue. Clearly, discovery must be carried out with a sense of proportionality. It would be an unduly burdensome task to require each and every document to be individually assessed when a global approach is appropriate.[34] I bear in mind the submission of Ms Eastwick-Field that there is still room for National Fire & Security Ltd to test the claimed confidentiality by Westpac. That is because Westpac will make the documents available for inspection subject to confidentiality being observed at the outset. Westpac accepts that if it has made an ill-founded application for confidence then it would be open to National Fire & Security Ltd to ask to be released from its proposed undertaking, to the extent that confidentiality does not apply. To that extent then I do not regard National Fire & Security Ltd as having been unduly prejudiced by the global claim to confidence as opposed to being given a document-by-document assessment of confidentiality.[35] In short then, I uphold in a general sense Westpac's claim to confidentiality,while at the same time reserving to National Fire & Security Ltd the right to review the claim to confidentiality in the case of particular documents once those documents have been disclosed.[36] National Fire & Security Ltd also proposed that the documents in which confidentiality was claimed ought to be categorised into the particular categories of documents required for tailored discovery. Instead, the documents have been identified by numerical identifiers in keeping with the modern approach to electronic discovery. I see no need for a party required to make tailored discovery to categorise each document within the classes of documents required for tailored discovery. That might arise if the order for discovery has required that. But it is inevitable, when there are a number of classes of documents required, that there may be some overlap. The parties need not be troubled with sorting out which particular category or categories documents may belong to, so long as they have covered all the categories of documents within the order for tailored discovery.[37] National Fire & Security Ltd also required that there be a narration for each document. Again, that is unnecessary given that the documents have been otherwise adequately identified for the purposes of electronic discovery.[38] With that I turn to the proposed undertaking. I bear in mind that when there is a claim for confidentiality that is not a ground for resisting disclosure absolutely. Instead, the court has to undertake a balancing exercise - on the one hand to protectthe party against unauthorised use or disclosure of documents discovered and on the other hand to allow the other party to have fair use of the documents for the purpose of the proceeding. As the cases have remarked there is no standard approach and each case may turn on its own facts.[39] I attach strong weight to the potential risk from improper use of the confidential documents. I place strong importance on the integrity of electronic payment systems. It is not hard to imagine the enormous disruption that might arise if electronic payment systems are tampered with by people euphemistically called"security risks". There could be strong disruption to commercial transactions. While the probability of that may be low, the impacts of such interference would be high. Secondary to that, Westpac is concerned at possible disclosure of its confidential documents to its competitors. That is also a proper concern for which it is entitled to protection although in my judgment it rates lower than the need to protect the integrity of electronic payment systems.[40] Westpac corresponded with the lawyers for National Fire & Security Ltd as to the terms of a confidentiality undertaking. It tendered a draft undertaking for thecourt's consideration and during the hearing the terms of the undertaking werediscussed. In the end, this confidentiality undertaking – which extends over nine clauses – required adjustments only in two areas.[41] The undertaking requires each person who is to receive the documents to use the documents only for the purpose of the litigation. The documents are to be kept strictly confidential, and they are not to be disclosed to any third person.[42] That is subject to the exception that where the disclosure is strictly necessary to enable National Fire & Security Ltd to progress the claim, it may be disclosed to the other person but that, in turn, requires the person receiving those documents themselves to give an undertaking and also to use the documents only for the purpose of the proceeding and not for any other purpose. Any third person receiving the documents will sign the undertaking as to confidentiality and that undertaking must be given to Westpac.[43] During the hearing, National Fire & Security Ltd demurred somewhat at the requirement of third parties to give such an undertaking and for the identity of those third parties to be disclosed to Westpac. I do not accept those reservations. The importance of a person signing a confidentiality undertaking is to ensure that it is brought home to that person that they are subject to a serious undertaking. Signing off on such an undertaking ensures that they are made expressly conscious of it. It is equally appropriate that that undertaking be given to Westpac so that they know the identity of the person to whom the documents have been given. That provides protection for Westpac if there should be any unauthorised disclosure.[44] It was submitted for National Fire & Security Ltd that that might inhibit its ability to run its case. There may be people who are unwilling to give an undertaking or may be unwilling to have Westpac know that they are to give evidence in the case. It was faintly submitted that this might give Westpac the opportunity to control how National Fire and Security Ltd should run its case.[45] I do not accept those concerns. It is important that Westpac know the identity of the people to whom the confidential documents have been disclosed. There should be no secrecy about who is to be called as a witness. The fact that Westpac may know the identity of people to whom the documents have been disclosed, or know that they may be called as a witness, should not operate against the undertakings to be given. In terms of National Fire and Security Ltd's ability to runits case effectively, it loses nothing in notifying Westpac of the people to whom the documents have been shown. Westpac will not be able to take any undue advantage of that knowledge. National Fire & Security Ltd is entitled to brief whom it will and seek advice from whom it will. Westpac will not be in a position to control whether those people give evidence or not, or give advice or not. Likewise, if the case arises where anyone resists giving an undertaking, that, as Ms Eastwick-Field submitted, would provide good reason for having reservations about that person having access to the documents.[46] I now address the two particular areas where some modification to the undertaking was required.[47] Clause 4 requires the plaintiff and its advisors to undertake to promptly return the documents to Westpac upon request by Westpac. It was accepted that that requires modification to prevent Westpac seeking return of the documents before the proceeding is concluded. Ms Eastwick-Field's proposal was that a request could bemade following final resolution of this matter by the courts or by agreement. Those words are to be added to clause 4.[48] The other matter concerns clause 6. As presently worded, clause 6 requires the person to whom the documents are disclosed to keep secure the confidential documents and establish and maintain effective security measures to safeguard the documents from unauthorised access, use, copying or disclosure. The solicitor in the law firm that has instructed Mr Black is concerned how he could expect to comply with an undertaking on those terms when the arrangements within his firm for the storing of electronic information is available on a system that is accessible by any partner or staff member of his firm. I bear in mind that, as I would expect with any reputable firm of solicitors, there would be a culture of respecting the confidentiality of information held by the firm, particularly as it bears on the affairs of clients but also in connection with information disclosed for the purposes of discovery. Even so, the solicitor is concerned at mishaps that might occur and liabilities that he might come under as a result of any inadvertent disclosure notwithstanding best efforts on his part.[49] With that in mind, the parties have discussed amending clause 6 and areagreed on the following wording, that is, "that the person will keep secureconfidential documents and procure that such effective security measures as are reasonably possible to safeguard the documents from unauthorised access, use,copying or disclosure are established and/or maintained". For my part I am contentwith that.[50] For fullness, I record that in the first instance the documents are to be disclosed to counsel for National Fire & Security Ltd, Mr Black's instructingsolicitor, the expert retained for National Fire & Security Ltd – Mr Spencer – and to Mr and Mrs Mahoney, the directors of National Fire & Security Ltd. Anyone else to whom the documents are disclosed will be third parties, which will trigger theobligations for any additional persons to be given those documents only if strictly necessary to enable National Fire & Security Ltd to progress the claim, and with those persons likewise to give confidentially undertakings.[51] I record also that the undertaking provides for the parties to come back to court to seek further rulings if they are unable to agree on any proposed amendment to the terms or unable to agree on the documents that should be subject to the undertaking. I record, expressly, that that allows National Fire & Security Ltd to come back to court if it contends that the documents within the third Schedule, or some of them, are not entitled to the protection which Westpac claims for them.Orders[52] I make these orders and directions:(a) The plaintiff is to file and serve a further affidavit of documents listing all documents within its control with information detailing theplaintiff's PAYEE library within DeskBank, MYOB and any previousaccounting system used by the plaintiff, including the full legal names of the payees.(b) The defendant is to have access to the plaintiff's current and formercomputer systems to be able to carry out an inspection and search for the classes of documents in paragraph [17] above, subject to the following terms:(i) The search is to be carried out following a protocol agreed by the parties, or failing agreement, settled by the court.(ii) The plaintiff may have its own computer consultant present to supervise the inspection.(iii) The information retrieved should be available to both parties.(iv) Access to any computer system in the control of the Serious Fraud Office is subject to the consent of the Office or to a further order made on a further application under r 9.34 made on notice to the Office.(c) The documents listed in Part 3 of the defendant's affidavit ofdocuments are to be provided by way of inspection to Michael Black, John Waugh, Steven Mahoney, Kerryn Mahoney and Michael Spence on the condition that they each first sign and provide undertakings to the defendant in the form tendered by the defendant at the hearing, subject to the amendments in paragraphs [47] to [49] above.(d) Leave is reserved to apply for further directions.Costs[53] At the end of the hearing I heard submissions as to costs. Ms Eastwick-Field began by seeking an indication whether there was a basis for increased costs. Mr Black countered that there should not be any award for costs to Westpac at all. His case was that an accommodation had been reached between the parties which made the hearing unnecessary.[54] The correspondence between the lawyers shows that Westpac's lawyers hadtried to reach an accommodation with National Fire & Security Ltd. Their last letter contained proposals which were the basis for the present application. They were not taken up. Westpac then followed up with the present application. In general, its position has been upheld today. I regard this as an appropriate case for costs. However, I see no basis for awarding increased costs. It is an interlocutory application where the opposition has to a large extent evaporated or at least reduced in significance. That aspect is not a basis for ordering increased costs against theplaintiff. I award costs for Westpac's application on a category 2 basis. I invite the parties to exchange proposals as to how those costs should be calculated. If there are any differences, memoranda may be filed...Associate Judge R M Bell