United Beverage Co-Packers Pty Ltd v Proclear International Pty Ltd; Proclear International Pty Ltd v United Beverage Co-Packers Pty Ltd (No 6)

I gave judgment in this matter on 18 November 2024. [1]

On 25 November 2024, for the reasons in my judgment of 26 November 2024, [2] I ordered that until 5pm on 16 December 2024 certain paragraphs of my judgment relating to Proclear's claim concerning the MFI-20 Formula be redacted pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) ("the Act"). I did so on the basis that Proclear was then contemplating whether to appeal from my judgment and was concerned that any appeal might be rendered nugatory were that material to be published before any appeal could be prosecuted and heard.

Proclear has now determined not to appeal from that part of my judgment that dealt with the MFI-20 Formula and Proclear's confidentiality claims generally. Proclear has not yet decided whether to appeal from other aspects of my judgment.

In those circumstances, Proclear accepts that there is no further justification for the making of the redactions currently in place in relation to the MFI-20 Formula. They will now be removed so that the full text of the judgment is published.

In my judgment of 26 November, [3] I also mentioned that Proclear also sought an order under the Act in relation to the document referred to at [63] of my principal judgment, a copy of which is attached to that judgment. That order was sought on the separate basis that publication of this document might reveal how Proclear makes or in the past did make its products.

Proclear now seeks an order under the Act to the effect that that document be redacted from the judgment on a permanent basis. In support of that application, Proclear has read a further confidential affidavit of Mr Lazar made on 21 November 2024.

I am satisfied that the document may contain confidential information and that I ought continue the order I have made redacting the document as part of my judgment. I should not, however, be taken to have made any final determination as to whether the document is or remains confidential.

My principal judgment as published will now be amended accordingly.

My attention has also been drawn today to the fact that orders made inter partes on 18 and 24 September 2024 concerning confidentiality remain in force. Mr Russell, who appears for UBC, seeks an order that those orders now be vacated.

Mr Russell also seeks the following order:

It may well be that those orders should be made, but I do propose to give Proclear an opportunity to consider their position in relation to those matters.

What I will indicate now is that I will make orders 1, 2 and 3 in the Short Minutes of Order, which I will mark as MFI-1 on today's application, unless I hear from Proclear to the contrary by 5pm on 16 December 2024.