Bayer New Zealand Limited v Ministry for Primary Industries
[2020] NZCA 640
•11 December 2020 at 11.30 am
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA273/2020
[2020] NZCA 640
BETWEEN BAYER NEW ZEALAND LIMITED
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
First Respondent
FRUCOR SUNTORY NEW ZEALAND LIMITED
Second Respondent
Hearing: 28 October 2020 Court:
Brown, Courtney and Goddard JJ
Counsel:
S V McKechnie and A R Winsley for Appellant E N C Lay and D J Watson for First Respondent E F R Bello for Second Respondent
Judgment:
11 December 2020 at 11.30 am
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay costs to the first respondent for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.
CThe appellant must pay the second respondent costs in respect of the second respondent’s application to be joined as a respondent in this appeal, on a band A basis.
DWe direct that:
(a)all information marked in grey in the affidavit of Natalie Acevski dated 2 September 2019 (the Information) must be kept
BAYER NEW ZEALAND LTD v MINISTRY FOR PRIMARY INDUSTRIES [2020] NZCA 640 [11 December 2020]
confidential on the Court file and not made available for inspection;
(b)the Court file should be marked accordingly;
(c)the appellant must be notified of any request to access the file pursuant to the Senior Courts (Access to Court Documents) Rules 2017; and
(d)no individual or organisation, apart from the appellant, may publish or disclose any of the Information.
Table of contents
Para No
Introduction and summary[1]
Background[6]
The Berocca range of products[6]
Launch of Berocca Forward[11]
Bayer’s approach to the classification and labelling of Berocca Forward[14]
The proceedings [19]
The regulatory framework for food in New Zealand[23]
High Court judgment[52]
Bayer’s submissions on appeal[61]
MPI’s submissions on appeal[77]
Frucor’s submissions on appeal[82]
Discussion[86]
Approach to interpretation of food standards[86]
Is Berocca Forward an FCB?[92]
Some observations about the regulatory regime for food in New Zealand [103] Confidentiality orders [104]
Costs[107]
Result[109]
REASONS OF THE COURT
(Given by Goddard J)
Introduction and summary
[1] All food sold in New Zealand must comply with applicable food standards adopted under the Food Act 2014. The issue in this appeal is which food standards apply to Berocca Forward, a ready-to-drink product manufactured and sold by the appellant, Bayer New Zealand Ltd (Bayer), which contains caffeine and certain vitamins and minerals.
[2] Bayer says Berocca Forward is a supplemented food, to which the New Zealand Food (Supplemented Food) Standard 2016 (SF Standard) applies. The Ministry for Primary Industries — Manatū Ahu Matua (MPI), the regulator of food products in New Zealand, disagrees. It says Berocca Forward is properly classified as a “formulated caffeinated beverage” (FCB). If the product is an FCB, it is required to comply with Standard 2.6.4 of the Australia New Zealand Food Standards Code (Food Code) which applies to FCBs (FCB Standard). MPI says Berocca Forward does not comply with the FCB Standard because it contains additives
— vitamins and minerals — which are not listed in the FCB Standard as substances that may be added to FCBs. MPI also says that the labelling of Berocca Forward does not comply with the food standards that govern labelling of FCBs. MPI says that the various respects in which Berocca Forward does not comply with the FCB Standard do not mean that the product is not an FCB: rather, MPI says, it is a non-compliant FCB.
[3] The High Court held that Berocca Forward comes within the definition of an FCB.1 It is common ground that if Berocca Forward is an FCB, it cannot be a supplemented food, as the definition of the term “supplemented food” in the SF Standard expressly excludes products that are FCBs.2
1 Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 789 [High Court judgment] at [95].
2 New Zealand Food (Supplemented Food) Standard 2016, Standard 1.3(2)(e).
[4] Bayer appeals, arguing that the High Court was wrong to find that Berocca Forward is an FCB. Rather, Bayer says, Berocca Forward comes within the definition of a supplemented food. The two definitions should be read together, and the definition of the term “FCB” should not be read so widely that it excludes products such as Berocca Forward from the regulatory regime for supplemented foods.
[5] We agree with the High Court that Berocca Forward is an FCB. In this case, that turns on whether the product “has the purpose of enhancing mental performance”.3 Bayer accepts that this is one purpose of the product, among others. We consider that this is a material purpose of the product. That is sufficient for Berocca Forward to qualify as an FCB. It follows that it is not a supplemented food.
Background
The Berocca range of products
[6] Bayer distributes the Berocca range of products in New Zealand. The products are well-known in the New Zealand market. The range includes Berocca Performance, Berocca Kick and Berocca Focus 50+, all of which are effervescent tablets. These are dissolved in water to make a drink. The range also includes Berocca Fizzy Melts, a chewable tablet. In 2016 Bayer launched Berocca Forward, the product with which this appeal is concerned.
[7] All of the Berocca products other than Berocca Forward are labelled and sold as “dietary supplements”, a category of food product to which the Dietary Supplements Regulations 1985 apply.4 When it was launched in 2016, Berocca Forward was also labelled and sold as a dietary supplement.
3 Australia New Zealand Food Standards Code, Standard 1.1.2—6(1)(b) [Food Code].
4 It was not suggested before us that the classification of those other products is incorrect.
[8] Berocca Performance contains various vitamins and minerals. It does not contain caffeine. The labels on its box and tube5 describe it as a dietary supplement. They feature the words “mental sharpness” and “physical energy”. The label on the box reads:
How does Berocca Performance work?
Berocca Performance is a unique combination of high dose B complex vitamins, vitamin C and essential minerals, like calcium, magnesium and zinc, which work to support your mental sharpness and physical energy throughout the day.
[9] Berocca Kick contains vitamins, minerals and guarana. Guarana contains naturally occurring caffeine. The label says that Berocca Kick contains about as much caffeine as an average cup of coffee. The Berocca Kick label refers to “mental alertness” and “physical energy”. The label describes the product as a dietary supplement. The label reads:
What is Berocca Kick?
Berocca Kick is the fast natural fuel you need to give you a quick effective boost whenever you need it. Berocca Kick contains Guarana, a fast-acting, natural energiser and is packed with a unique combination of B vitamins and minerals to give you a little kick when you need it.
[10] Berocca Performance and Berocca Kick tablets are packaged in distinctive green packaging with orange highlights. The word “Berocca” appears within a silver lozenge shape.
Launch of Berocca Forward
[11] Bayer formed the view that there would be consumer demand for a Berocca product that was ready to drink, rather than in tablet form. It launched Berocca Forward to meet that demand.
5 It comes in a box which contains a tube, which in turn contains the tablets.
[12] Berocca Forward is sold in a 250 ml can.6 It is an effervescent drink which contains various vitamins, minerals, guarana and caffeine. The Berocca Forward label uses the range’s orange colour as the predominant colour, with the green as the highlight. The silver lozenge outline around the word “Berocca” is also present. Berocca Forward is clearly identifiable as one of the Berocca family of products by its labelling.
[13] Approximately three million cans and 350,000 bottles (865,500 litres) of Berocca Forward had been manufactured and distributed for sale in New Zealand as at September 2019.
Bayer’s approach to the classification and labelling of Berocca Forward
[14] As noted above, Bayer initially opted to classify Berocca Forward as a “dietary supplement” like the other products in the Berocca range. That classification was shown on the label. In October 2016 Frucor Suntory New Zealand Ltd (Frucor) challenged the appropriateness of that classification. It raised the issue in correspondence with Bayer and made a complaint to MPI. This led to discussions and correspondence between MPI and Bayer about the classification of the product. In January 2017 MPI advised Bayer that it considered that the product was not a dietary supplement as defined in the Dietary Supplements Regulations. Rather, it was an FCB. Because the product did not comply with the FCB standard, it was a non-compliant FCB.
[15] In February 2017 Bayer advised MPI that it considered Berocca Forward could be classified as a dietary supplement, but that in order to address MPI’s concerns, Bayer proposed to classify the product as a supplemented food, to which the SF Standard would apply.
[16] MPI did not accept that Berocca Forward could properly be labelled as a supplemented food. MPI advised Bayer that it remained of the view that the product was an FCB. MPI asked Bayer to comply with the FCB Standard by Friday, 31 March 2017.
6 It appears that it was also previously sold in 330 ml bottles.
[17] Bayer continued to engage with MPI to attempt to persuade the regulator that Berocca Forward could be classified as a supplemented food. Bayer advised MPI that it would be relabelling Berocca Forward as a supplemented food, and would remove claims in relation to “mental sharpness” and “physical energy” from Berocca Forward labels and from its website. Without the claim in relation to mental performance, Bayer said, the drink did not come within the definition of an FCB.
[18] MPI was not persuaded. It remains of the view that the product is an FCB for the purposes of the relevant food standards, so cannot be a “supplemented food”. It also remains of the view that the composition and labelling of the product does not comply with the food standards applicable to FCBs.
The proceedings
[19] Bayer found itself in an unsatisfactory situation. MPI had advised it that its product did not comply with the Food Act and applicable food standards, and could not lawfully be sold in New Zealand. But MPI had also indicated that it did not intend to take enforcement action, in light of its enforcement policy. Bayer did not want to take the risk of continuing uncertainty about the lawfulness of the product’s labelling and sale. It brought proceedings under the Declaratory Judgments Act 1908 to clarify the position.
[20] A declaration under the Declaratory Judgments Act is binding on the person making the application and on all persons on whom the application is served.7 Bayer served its application on MPI as the defendant, and also on the New Zealand Food and Grocery Council, the New Zealand Beverage Council, Food Standards Australia New Zealand (FSANZ), and Frucor (which as noted above was the original complainant that triggered MPI’s investigation). Frucor filed a notice of appearance in the High Court but did not participate in the hearing before that Court.
7 Declaratory Judgments Act 1908, s 4.
[21]In the High Court Bayer sought declarations that:
(a)the product is not an FCB under the FCB Standard of the Food Code;
(b)the product may be labelled and sold as a “supplemented food” under the SF Standard; and
(c)a company may choose how it classifies a food under any regulatory classification, so long as the food is compliant with the legal requirements of the regulatory classification chosen.
For its part, MPI asked the Court to make declarations to the opposite effect.
The regulatory framework for food in New Zealand
[23] The regulatory framework that applies to the Berocca range of products in New Zealand is a complex patchwork of joint Australia/New Zealand food standards, New Zealand-specific food standards, and the Dietary Supplements Regulations. The Dietary Supplements Regulations were made in 1985 under the Food Act 1981, before adoption of the joint Australia-New Zealand food regulatory regime. They were carried forward under the Food Act 2014, subject to a sunset provision: they continue in force until 1 March 2021 unless revoked earlier.8
[24] The Food Act provides the overarching statutory framework for the regulation of food products in New Zealand. The purpose of the Food Act is set out in s 4:
4 Purpose
The purpose of this Act is to—
(a)restate and reform the law relating to how persons trade in food; and
(b)achieve the safety and suitability of food for sale; and
8 Food Act 2014, s 420(3)(b).
(c)maintain confidence in New Zealand’s food safety regime; and
(d)provide for risk-based measures that—
(i)minimise and manage risks to public health; and
(ii)protect and promote public health; and
(e)provide certainty for food businesses in relation to how the requirements of this Act will affect their activities; and
(f)require persons who trade in food to take responsibility for the safety and suitability of that food.
[25] Section 5 of the Food Act provides that it applies to food for sale and food-related accessories.
[26]The terms “safety” and “suitability” are defined in s 12:
12 Meaning of safety and suitability
(1)In this Act, unless the context otherwise requires, safety and suitability, in relation to food, have the meanings set out in subsections (2) and (3) respectively.
(2)Safety means a condition in which food, in terms of its intended use, is unlikely to cause or lead to illness or injury to human life or public health.
(3)Suitability means a condition in which the matters specified in—
(a)subsection (4) are appropriate to food in terms of its intended use; and
(b)subsection (5) do not apply.
(4)The matters referred to in subsection (3)(a)—
(a)include the composition, labelling, identification, and condition of the food; but
(b)do not include—
(i)matters that are directly related to the food’s safety; or
(ii)matters of quality or presentation of the food that relate to a purely commercial decision by the person trading in the food.
(5)Food is unsuitable if it—
(a)is in a condition that is offensive:
(b)is damaged, deteriorated, or perished to the extent of affecting its reasonable intended use:
(c)contains, or has attached to it or enclosed with it, any damaged, deteriorated, perished, or contaminated substance or thing to the extent of affecting its reasonable intended use:
(d)contains a biological or chemical agent, or other substance or thing, that is foreign to the nature of the food and the presence of which would be unexpected and unreasonable in food prepared or packed for sale in accordance with good trade practice:
(e)has packaging that is damaged, deteriorated, perished, or contaminated to the extent of affecting the food’s reasonable intended use.
…
[27] The Food Act contemplates two kinds of food standards with which foods must comply if they are sold in New Zealand: adopted joint food standards and domestic food standards.
[28] Joint food standards are developed by FSANZ, a joint regulatory agency established pursuant to the Agreement between the Government of Australia and the Government of New Zealand concerning a Joint Food Standards System (ANZ Food Agreement).9 The standards adopted by FSANZ are collectively known as the Food Code.
[29] Section 397 of the Food Act provides that the Minister may adopt a joint food standard to apply in New Zealand:
397 Minister may adopt joint food standards
(1)The Minister may, by notice, adopt a joint food standard (adopted joint food standard) for food manufactured or prepared for sale or sold in New Zealand, or imported into, or exported from, New Zealand, if subsections (2) and (3) are complied with.
9 Agreement between the Government of Australia and the Government of New Zealand concerning a Joint Food Standards System [1996] NZTS 9 (signed 5 December 1995, entered into force 5 July 1996).
(2)In adopting a joint food standard under subsection (1), the Minister must take into account the following matters:
(a)the need to protect public health:
(b)the desirability of avoiding unnecessary restrictions on trade:
(c)the desirability of maintaining consistency between the adopted joint food standards and those standards that apply internationally:
(d)the need to give effect to New Zealand’s obligations under any relevant international treaty, agreement, convention, or protocol:
(e)any other matters that the Minister considers relevant.
(3)The Minister must not adopt a joint food standard under subsection (1) unless he or she is satisfied that adequate consultation on the joint food standard has taken place under the Food Standards Australia New Zealand Act 1991 (Australia).
(4)The effect of adopting a joint food standard is that a person who manufactures or prepares food for sale in New Zealand, or sells food in New Zealand, or imports food into, or exports food from, New Zealand must comply with the requirements of the adopted food standard in relation to that food.
[30] The ANZ Food Agreement, and the Food Code developed under that Agreement, seek to harmonise certain aspects of the regulation of sale and import of food in Australia and New Zealand. That harmonisation of regulatory requirements for food in turn supports the operation of the Trans-Tasman Mutual Recognition Arrangement (TTMRA) in relation to food products. The TTMRA is implemented in New Zealand by the Trans-Tasman Mutual Recognition Act 1997. The TTMRA is based on two mutual recognition principles, one relating to goods and one relating to occupations. In essence, the principle relating to goods provides that goods that can lawfully be sold in an Australian jurisdiction can lawfully be sold in New Zealand, and vice versa.
[31] The alignment of regulatory requirements through the adoption of joint food standards is intended to reduce the circumstances in which there are material differences in regulatory requirements applicable to food sold in New Zealand and Australia. Where there are such differences, the result can be that certain food products may be supplied in one or other country pursuant to the TTMRA that could
not otherwise be lawfully sold in that country. The joint food standards regime seeks to limit the circumstances in which that scenario may arise.
[32] However the ANZ Food Agreement recognises that there may be exceptional circumstances in which one or other country will adopt separate food standards. Section 403 of the Food Act provides that the purpose of s 404 of that Act is to allow, in certain limited and exceptional circumstances, for food standards to be issued separately in New Zealand from those set out in the Food Code, and to be given the force of law in New Zealand only. Section 404 provides:
404 Minister may issue domestic food standards
(1)The Minister may, by notice, issue food standards (domestic food standards) for food manufactured or prepared for sale or sold in New Zealand, or imported into, or exported from, New Zealand, if—
(a)standards have been or are being developed under the Australia–New Zealand Joint Food Standards Agreement for inclusion in the Australia New Zealand Food Standards Code, but New Zealand has chosen, under an annex of the Agreement, to opt out of the standards; and
(b)subsection (2) is complied with.
(2)In issuing domestic food standards under subsection (1), the Minister must take into account the following matters:
(a)the need to protect public health:
(b)the desirability of avoiding unnecessary restrictions on trade:
(c)the desirability of maintaining consistency between domestic food standards and those standards that apply internationally:
(d)the need to give effect to New Zealand’s obligations under any relevant international treaty, agreement, convention, or protocol:
(e)any other matters that the Minister considers relevant.
…
[33] Chapters 1 and 2 of the Food Code apply in both Australia and New Zealand. The standards contained in these chapters are adopted joint food standards for
the purposes of the Food Act. Chapter 1 contains certain provisions that apply to all foods, and chapter 2 contains provisions that apply only to particular foods.10
[34] Division 2 of Standard 1.1.1 deals with the application and interpretation of the Food Code. Standard 1.1.1—3 provides that except where the Food Code provides otherwise, it applies to food that is sold, processed or handled for sale in Australia or New Zealand or imported into Australia or New Zealand.
[35] Standard 1.1.1—4 provides for the application of the standard interpretation rules in each country:
1.1.1 —4 Application of interpretation legislation
This Code is to be interpreted in accordance with the rules of interpretation:
(a)in Australia—the Acts Interpretation Act 1901 (Cth); and
(b)in New Zealand—the Interpretation Act 1999 (NZ).
[36] Division 4 of Standard 1.1.1 sets out certain basic requirements in relation to food. Standard 1.1.1—10 sets out certain generally applicable requirements in relation to food for sale, including compositional requirements and labelling requirements.
[37] Standard 1.1.2 sets out definitions that are used throughout the Food Code, including a definition of the term “formulated caffeinated beverage”:
1.1.2 —6 Definition of formulated caffeinated beverage
(1)In this Code:
formulated caffeinated beverage means a flavoured, non-alcoholic beverage, or a flavoured, non-alcoholic beverage to which other substances (for example, carbohydrates, amino acids, vitamins) have been added, that:
(a)contains caffeine; and
(b)has the purpose of enhancing mental performance.
10 Chapter 3 in relation to food hygiene, and chapter 4 in relation to the primary production and processing of food, apply in Australia only.
(2)To avoid doubt, a formulated caffeinated beverage is a water based flavoured drink for the purposes of item
14.1.3 of section S15—5 and of section S18—10.
[38] As noted above, standard 2.6.4 (the FCB Standard) applies to FCBs. In particular, it contains provisions in relation to the composition of FCBs and labelling requirements for FCBs. Standard 2.6.4—3 provides:
2.6.4—3 Composition—formulated caffeinated beverages
A formulated caffeinated beverage:
(a)must contain no less than 145 mg/L and no more than 320 mg/L of caffeine in total, from any source; and
(b)may contain a listed substance.
Standard 2.6.4—5 sets out the applicable labelling requirements:
2.6.4—5 Labelling requirements—formulated caffeinated beverage
Required declarations
(1)For the labelling provisions, the required declarations of average quantities are a declaration of the *average quantity, per serving size and per 100 mL, of:
(a)caffeine, expressed in milligrams; and
(b)each listed substance (if any) that the beverage contains, expressed in the units in Column 2 of the table to section S28—2.
Note The labelling provisions are set out in Standard 1.2.1.
(2)The declarations under subsection (1):
(a)may be adjacent to or follow a nutrition information panel on the label; and
(b)may be set out in the format in section S12—5; and
(c)may not be set out in the nutrition information panel.
Required advisory statements
(3)For the labelling provisions, the required advisory statements are statements to the effect that:
(a)the food contains caffeine; and
(b)the food is not recommended for:
(i)children; or
(ii)pregnant or lactating women; or
(iii)individuals sensitive to caffeine; and
(c)if the food contains a listed substance—no more than a one-day quantity should be consumed per day.
Note 1 The labelling provisions are set out in Standard 1.2.1.
Note 2 Subsection 1.2.1—9(7) and paragraph 1.2.1—9(8)(g) each contain a labelling requirement for formulated caffeinated beverages that are not required to bear a label.
Note 3 For a formulated caffeinated beverage, the one-day quantity is the maximum amount that should be consumed in a day. For each listed substance that the beverage contains, a one-day quantity will not contain more than the amount in the corresponding row of the table to section S28—2.
(4)For the advisory statement required by paragraph (3)(c), the one-day quantity may be expressed as mL, or as cans or bottles, as appropriate.
…
[40] Before New Zealand became a participant in the joint Food Code regime, certain food products were classified as dietary supplements in New Zealand, and (as noted at [7] above) were regulated under the Dietary Supplements Regulations. Many products that are classified as dietary supplements under that regime are not regulated under the Australian regulatory regime for food. Rather, they are regulated as “therapeutic goods”. The Food Code does not extend to such products. Following commencement of the Food Code regime in New Zealand, the sale of those products in New Zealand continued to be regulated under the Dietary Supplements Regulations. It was envisaged that these regulations would eventually be replaced
with either a joint Trans-Tasman regime for such products, or a revised New Zealand-specific regime.
[41] However, the process of developing a new regulatory regime for these products has been protracted and difficult. The Dietary Supplements Regulations remain in force, and we were advised by counsel that there is a Bill before Parliament that would further extend the transitional period for which these regulations remain in force.11
[42] Partial reform of the regulatory regime for dietary supplements occurred in 2010, with the introduction of the SF Standard. This New Zealand-specific food standard applies to what are referred to as “‘food-type’ dietary supplements”. The purpose of the SF Standard is to:
a)provide an interim regulatory arrangement for supplemented food until there are appropriate provisions in the Australia New Zealand Food Standards Code (the Code); and
b)regulate the “food-type” dietary supplements that were formerly regulated under the Dietary Supplements Regulations 1985.
[43] The SF Standard has been amended on a number of occasions. The current SF Standard was adopted in 2016. It defines the term “supplemented food” as follows:
1.3 Meaning of supplemented food
(1)A supplemented food is a product that is represented as a food that has a substance or substances added to it, or that has been modified in some way, to perform a physiological role beyond the provision of a simple nutritive requirement.
(2)The following products are not supplemented foods:
a)a dietary supplement (as defined in the Dietary Supplements Regulations 1985):
b)a medicine (as defined in the Medicines Act 1981):
c)a controlled drug or restricted substance (as defined in the Misuse of Drugs Act 1975):
11 The Bill proposes to extend the transitional period to 1 March 2026: Food (Continuation of Dietary Supplements Regulations) Amendment Bill 2020 (248-1), cl 4.
d)a formulated meal replacement or a formulated supplementary food (as defined in standard 1.1.2–2 of the Code):
e)a formulated caffeinated beverage (as defined in standard 1.1.2–6 of the Code).
(3)To avoid doubt, subclause (2) does not contain an exhaustive list of products that are not supplemented foods.
(Emphasis added.)
[44] SF Standard 1.4 identifies certain standards in the Food Code that do not apply to supplemented food, including the FCB standard.
[45] SF Standard 1.6 sets out identification requirements in relation to supplemented food. In particular, the words “supplemented food” must be placed in a prominent position on the label of every package of supplemented food.
[46] SF Standard 1.9 provides that supplemented food may contain caffeine for a purpose other than as a food additive, subject to certain limits set out in SF Standard 1.10.
[47] SF Standard 1.10 sets out certain restrictions on substances added to supplemented food. The substances listed in Table 2 of the SF Standard may only be added to supplemented food if the applicable restrictions set out in the table are complied with. The entries in Table 2 for caffeine and guarana read as follows:
Substance Restriction … … Caffeine If the supplemented food contains a greater level of caffeine than is required to achieve a technological function under conditions of Good Manufacturing Practice, the label on the package must include both of the following:
(a) an advisory statement to the effect that the food contains caffeine and is not recommended for children, pregnant or lactating women, or individuals sensitive to caffeine:
(b) the following details in the nutrition information panel:
(i) The average quantity of caffeine per serve:
(ii) The average quantity of caffeine per 100 ml or 100 gm.
Guarana The label on the package must include an advisory statement to the effect that the supplemented food contains caffeine.
[48] SF Standard 1.12 sets out certain restrictions on the addition of vitamins and minerals to supplemented food, including maximum one-day quantities of certain vitamins and minerals.
[49] When the SF Standard was adopted in 2010, the scope of the Dietary Supplements Regulations was correspondingly narrowed. Regulation 2A defines the term “dietary supplement”:
2A Meaning of dietary supplement
(1)In these regulations, dietary supplement means something to which subclauses (2) to (6) apply.
(2)It is an amino acid, edible substance, herb, mineral, synthetic nutrient, or vitamin.
(3)It is sold by itself or in a mixture.
(4)It is sold in a controlled dosage form as a liquid, powder, or tablet (which might be described on the label as a cachet, capsule, lozenge, or pastille instead of as a tablet).
(5)It is intended to be ingested orally.
(6)It is intended to supplement the amount of the amino acid, edible substance, herb, mineral, synthetic nutrient, or vitamin normally derived from food.
[50] The Food Act contains a number of offence provisions. It is an offence to breach or fail to comply with a requirement in an adopted joint food standard or a domestic food standard.12 The maximum fine for a body corporate is $100,000 and for an individual is $20,000.13 It is also an offence for a person to breach or fail to
12 Food Act, s 243(1)(a).
13 Section 243(4).
comply with a requirement in the Food Act, or in regulations made under that Act.14 The offence attracts a maximum fine for a body corporate of $20,000 and for an individual of $5,000.15
[51] It was common ground between counsel that dietary supplements are “food” for the purposes of the Food Act.16 It was also common ground that a product that is a dietary supplement is subject to the Dietary Supplements Regulations, but not to the requirements in the SF Standards. We have not been able to identify any provision in the Food Act that expressly excludes dietary supplements from the regulatory regime set out in the Food Code, but for the purposes of this appeal we will assume the correctness of that approach.
High Court judgment
[52] Before the High Court the focus was on whether Berocca Forward is an FCB as defined in Standard 1.1.2—6 of the Food Code. If it is an FCB, then SF Standard 1.3(2)(e) expressly provides that it is not a supplemented food.
[53] Before the High Court, as before us, it was common ground that Berocca Forward is a flavoured, non-alcoholic beverage to which other substances (including vitamins and minerals) have been added, that contains caffeine.17 So the critical issue was whether Berocca Forward satisfies limb (b) of the definition of an FCB: does it have the purpose of enhancing mental performance?
[54] In the High Court Grice J held that an ordinary reading of the word “purpose” in this context includes the aim intended to be attained by use of the product as likely to be perceived by a targeted customer.18 The Judge considered that this was consistent with the concept of “intended use” as defined in s 8 of the Food Act, which includes
14 Section 244(1).
15 Section 244(4). The Dietary Supplements Regulations 1985 also contain an offence provision: reg 21 provides that contravention of certain regulations is an offence and the offender is liable to a fine not exceeding $500. The interaction between s 244 of the Food Act and the offence provision in the Dietary Supplement Regulations appears problematic, but is not relevant for present purposes.
16 Food Act, s 9.
17 Food Code, Standard 1.1.2—6(1)(a).
18 High Court judgment, above n 1, at [58].
a use that is specifically stated or which “could reasonably be presumed to be intended, taking into account the food’s nature, labelling, packaging and identification”.19
[55] The Judge considered that the labelling, marketing and associations of the product were relevant to establishing the consumer’s perceptions and so the product’s purpose. Initially Bayer marketed Berocca Forward by making claims about “mental sharpness” and “physical energy”. Those claims were no longer explicit, but the Judge considered there was no attempt to distance the product from other Berocca products insofar as its intended use and benefits were concerned. A consumer would gain the impression that the Berocca Forward drink has the same purpose as its Berocca product stablemates — generally enhancing mental performance as well as physical energy. This was supported by the labelling and by the fact it contains caffeine, which is generally regarded as a stimulant.20
[56] The Judge noted that the expert evidence adduced by Bayer confirmed that the amount of caffeine contained in Berocca Forward is likely to be pharmacologically active, with an effect on cognition. It is likely to have the effect of improving vigilance and cognitive performance.21
[57]The Judge summarised her analysis as follows:
[72] It is the consumer from whose point of view the purpose must be considered. A common-sense approach is called for in the circumstances. Common sense indicates that Berocca Forward would be seen by a consumer as a product which had the purpose of enhancing mental performance. That it is likely to have that effect is supported by the expert evidence.
[58] The Judge concluded that Berocca Forward met the definition of an FCB. She went on to note that because Berocca Forward is an FCB, it is required to comply with the FCB standard. It does not do so. It contains permitted levels of caffeine. But it contains additives — vitamin C, magnesium and zinc — which are not permitted listed substances. The fact that Berocca Forward contains non-compliant additives means Berocca Forward is a non-complying FCB. Adding non-listed additives does
19 At [59]. We understand the Judge’s reference to s 2 as being to s 8.
20 At [61]–[65].
21 At [70].
not take the product outside the FCB definition. Rather, it means that the product cannot lawfully be sold or distributed in New Zealand.22
[59] The Judge declined to determine whether or not Berocca Forward is an “energy drink”. As the Judge noted, this is not a term used in the legislation and it was not necessary to reach a view on this issue.23
[60] The Judge made a declaration that Berocca Forward is an FCB. The Judge did not consider that any further declarations were appropriate in the circumstances.24
Bayer’s submissions on appeal
[61] Bayer’s primary submission was that Berocca Forward is the “food-type” product of its dietary supplement stablemates. Of these, Bayer submitted, Berocca Forward is most similar in formulation to Berocca Kick, an effervescent tablet containing caffeine. The two products are compared in the following table:
Vitamin/mineral Berocca Kick (per tablet) Berocca Forward (per serving 250mL can) Vitamin B1 1.4 mg 1.1 mg Vitamin B2 1.6mg Vitamin B3 18 mg 16 mg Vitamin B5 6 mg 2.5 mg Vitamin B6 2 mg 1.4 mg Vitamin B12 1 mcg Vitamin C 60 mcg 65 mcg Vitamin H 150 mcg Folic acid 200 mcg Magnesium 100 mg 50 mg Zinc 9.5 mg 7.5 mg Calcium 100 mcg Caffeine
(inc guarana)
75 mg 80 mg
22 At [73]–[79].
23 At [86]–[87].
24 At [95].
[62] Bayer submitted that Berocca Forward meets the definition of a supplemented food and meets the requirements applicable to supplemented foods. Bayer’s expert evidence confirmed that Berocca Forward is a food “that has a substance or substances added to it, or that has been modified in some way, to perform a physiological role beyond the provision of a simple nutritive requirement”.
[63] Bayer submitted that there are overlapping areas in the various regulatory regimes that apply to different food products in New Zealand. Where a product meets more than one description, the supplier can choose which category the product should be marketed in. In the course of argument Ms McKechnie, counsel for Bayer, accepted that there can be no overlap between the categories of supplemented food and FCB because FCBs are expressly excluded from the definition of “supplemented food”. But, she submitted, the High Court erred in focussing solely on the definition of an FCB and declining to reach a view on whether Berocca Forward qualified as a supplemented food. It was necessary to read the two definitions together in a manner that best achieved the purposes of the Food Act. Approached in this way, she submitted, the defining distinction between the two food types is the role or purpose of the food. A supplemented food is represented as a food with substances added to it to perform a physiological role, whereas an FCB has the purpose of enhancing mental performance.
[64] Ms McKechnie referred us to the observation of the New South Wales Supreme Court in relation to interpretation of the Food Code:25
71 In construing the [Food] Code, it seems to me to be appropriate to bear in mind that, while it has legal force, it is a document drafted, apparently, by non-lawyers. That being so, it may be appropriate to take a more liberal, or more purposive, approach to its construction.
[65] It would be unsatisfactory, Ms McKechnie said, to read the relevant standards in a manner that resulted in Berocca Forward not being able to be sold, even though there are no safety concerns with the product and it is substantially similar to products such as Berocca Kick which can lawfully be sold. There is no coherent basis for allowing the sale of one product, but not the other. Berocca Forward is a food type
25 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWSC 1382, (2008) 74 NSWLR 148.
version of the Berocca range of dietary supplements. Classification under the SF Standard should be an available route for Bayer to follow.
[66] Ms McKechnie submitted that MPI had equivocated on whether Berocca Forward fell within the definition of a supplemented food set out in SF Standard 1.3(1). But its reservations were not persuasive and were not supported by any expert evidence.
[67] Turning to the FCB Standard, Ms McKechnie submitted that the definition of the term “formulated caffeinated beverage” was ambiguous. The reference to the purpose of enhancing mental performance could mean that the product:
(a)has the sole purpose of enhancing mental performance;
(b)has the primary purpose of enhancing mental performance; or
(c)has the purpose of enhancing mental performance as one of any number of other purposes.
[68] Bayer submitted that the interpretation in either (a) or (b) was most appropriate in the context of the FCB definition and the wider Food Code. The Berocca range has various purposes and effects including physical energy, physical stamina, reduced tiredness and fatigue, improved alertness and concentration, enhanced mental performance, and improved mood. If the FCB Standard is approached as including products which enhance mental performance as a secondary purpose among many, that would cast an overly wide net capturing products better placed under other regulatory classifications.
[69] Bayer argued that there were five errors in the High Court’s approach. First, the High Court treated enhancing mental performance as the purpose of the entire Berocca range now and into the future. That is an incomplete characterisation which fails to consider the other associations consumers would make. The remainder of the Berocca range are sold as dietary supplements. Mental sharpness and/or alertness are just one aspect of the claims made as to the effect of the Berocca
range (see [68] above). Others include physical energy, physical stamina, reduced tiredness and fatigue, and improved mood. Berocca Forward would be perceived by consumers in the same manner as the manufacturer intended: as a ready-to-drink extension of Berocca’s range of dietary supplements.
[70] Second, Bayer said, the High Court wrongly relied on the inclusion of caffeine as leading to Berocca Forward having the purpose of enhancing mental performance. This cannot be determinative, as the current SF Standard expressly permits caffeine in a supplemented food.
[71] Third, the High Court erred in assessing Bayer’s expert evidence by focussing on the effects of caffeine. The purpose of Bayer’s expert evidence was to confirm that Berocca Forward had physiological effects, including the effect of the caffeine contained in it, and also the effect of certain vitamins on physiological performance. These effects were independent of each other.
[72] Fourth, the Judge erred in placing weight on Berocca Forward carrying the FCB usage and safety warnings, including warnings for caffeine. Warnings in relation to caffeine are also required under the SF Standard. Including such warnings on the packages is consistent with Berocca Forward being a supplemented food.
[73] Fifth, the Judge’s reliance on the term “intended use” as defined in s 8 of the Food Act was misplaced. That term is used in a sense that is different from the way in which the FCB Standard uses the term “purpose”.
[74] As noted above, in the course of oral argument Ms McKechnie accepted that a product that is an FCB is by definition not a supplemented food. Ms McKechnie also accepted that one of the effects of Berocca Forward is to enhance mental performance, and that this is one of the product’s purposes. She also accepted, rightly in our view, that if a product can be classified as an FCB if one of its purposes (among others) is to enhance mental performance, then Berocca Forward would be an FCB. But, she said, that interpretation would give the FCB Standard an unduly wide scope, and would inappropriately narrow the scope of the “supplemented food” category. A
product that would otherwise qualify as a supplemented food should be classified as an FCB only if its sole or primary purpose is to enhance mental performance.
[75] We explored with Ms McKechnie how one would go about identifying whether enhancing mental performance was the sole purpose of a product, or the primary purpose of a product. Ms McKechnie was not able to identify any relevant principles that would guide such an inquiry. Rather, she submitted, this is a question that would need to be approached on a factual basis in relation to any given product.
[76] Ms McKechnie also accepted, rightly, that if a product meets the definition of an FCB, it does not cease to be an FCB because it contains non-listed vitamins or other substances. Rather, it would be an FCB that fails to comply with the FCB Standard.
MPI’s submissions on appeal
[77] MPI sought to uphold the reasoning in the High Court judgment. Ms Lay, counsel for MPI, submitted that it was not contested that Berocca Forward contains caffeine and is a flavoured, non-alcoholic beverage to which other substances have been added. Bayer did not appear to contest that the product has the purpose of enhancing mental performance, but says this is one of many purposes, and places an emphasis on its own commercial purpose of expanding the Berocca range. Ms Lay submitted that enhancement of mental performance is a purpose of Berocca Forward and, as a result, it is an FCB. It must therefore comply with the FCB Standard. Because it contains certain non-listed substances, it does not comply with that standard.
[78] MPI expressed some reservations about whether Berocca Forward would qualify as a supplemented food apart from the exclusion in SF Standard 1.3(2). But that issue need not be definitively resolved, because the answer to the question of whether the product is a supplemented food is provided by the express exclusion in SF Standard 1.3(2).
[79] MPI submitted that Bayer’s argument that only the sole or primary purpose of a product is relevant in assessing whether the product is an FCB is not consistent with the language of the definition, and would allow manufacturers to circumvent
the requirements of the FCB Standard by introducing an inauthentic “primary” purpose. That approach would undermine the purpose of the Food Code and the broader regulatory regime under the Food Act. It is sufficient that a product has the purpose of enhancing mental performance as one of a number of purposes.
[80] MPI also submitted that even if one were to adopt a “sole purpose” or “primary purpose” test, it would be met in this case.
[81] MPI noted that it evaluates the purpose of a product from the perspective of an objective person in possession of all relevant facts. The High Court focused on the purpose of Berocca Forward as it would be perceived by a consumer. But whichever approach is ultimately adopted, MPI submitted, the product unquestionably has the purpose of enhancing mental performance. That is confirmed by:
(a)The composition of the product. In particular, the fact that it contains a level of caffeine accepted as likely to be pharmacologically active, with an effect on cognition.
(b)Indications on the product’s labelling and packaging. It was originally represented as an energy drink with claims of mental sharpness. The packaging of the product continues to reinforce its association with other Berocca products, which are all advertised with claims of mental sharpness and mental alertness.
(c)Product placement. The product is often placed with other energy drinks at supermarkets and other retailers. Although Bayer does not control product placement, the placement and treatment of the product is indicative of the perception of the product as an energy drink by retailers and consumers alike.
(d)Statements by the manufacturer about the product, and in particular, its initial advertising.
Frucor’s submissions on appeal
[82] Bayer did not name Frucor as a respondent in this appeal. Frucor successfully applied to be joined as a respondent.26
[83] Frucor provided written submissions opposing the appeal, and counsel for Frucor made brief oral submissions. In summary, Frucor submitted that the High Court was correct to find that Berocca Forward is a non-compliant FCB. Permitting Bayer to classify Berocca Forward as a supplemented food would undermine the regulation of FCBs, and compromise the food safety regime in New Zealand.
[84] Responding to Bayer’s submission that a product should be treated as having the purpose of enhancing mental performance only if that is its sole or primary purpose, Frucor submitted that the text of the FCB Standard is clear on its face. Neither of the words “sole” or “primary” is used. Therefore, these restrictions should not be read into the definition of an FCB.
[85] After it was added as a respondent, Frucor applied for leave to adduce further evidence on appeal. That application was withdrawn shortly before the hearing of the appeal. Despite withdrawing that application, Frucor included in its submissions a number of factual propositions about the way in which Berocca Forward is currently marketed and advertised that had been included in its proposed new evidence, with footnote references to websites that were said to illustrate those propositions. We disregard those submissions: in the absence of leave to adduce further evidence, there is no evidential basis to support them. Updating evidence cannot be introduced by a side wind by including factual propositions in submissions with footnote references to internet sources, effectively inviting the Court to treat the information available from those sources as if it were evidence, in circumstances where no leave had been granted to adduce further evidence on appeal.
26 Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZCA 463.
Discussion
Approach to interpretation of food standards
[86] At the risk of stating the obvious, the ordinary principles of interpretation apply in relation to the Food Act, the SF Standard and the Dietary Supplements Regulations. The two key drivers of interpretation are text and purpose.27 In determining purpose the Court must have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objectives of the enactment.28
[87] These principles also apply to the interpretation of the adopted joint food standards that form part of the Food Code applicable in New Zealand. That is expressly confirmed by Standard 1.1.1—4 (set out at [35] above).
[88] When interpreting the provisions of adopted joint food standards, the joint character of those standards is an important facet of their context and their purpose. It would be inconsistent with the nature and purpose of the joint standards for materially different interpretations of the same provision to be adopted in New Zealand and in Australia. The approach the Court adopts to interpretation of these instruments should reflect the desirability of a consistent interpretation of the joint food standards in both countries. The importance of seeking to achieve a consistent interpretation of joint food standards is reinforced by the provisions of the ANZ Food Agreement, which (as noted at [30] above) seeks to harmonise certain aspects of the regulation of sale and import of food. Article 5 of that Agreement provides for the adoption in each country of joint food standards, and (with certain exceptions) prohibits the amendment of joint food standards other than in accordance with the Agreement. Article 5 also prohibits (subject to certain exceptions which are not relevant for present purposes) either Member State by legislation or other means, establishing or amending a food standard falling within the scope of the ANZ Food
27 Interpretation Act 1999, s 5(1); and Commerce Commission v Fonterra Co-operative Group Ltd
[2007] NZSC 36, [2007] 3 NZLR 767 at [22].
28 Commerce Commission v Fonterra Co-operative Group Ltd, above n 27, at [22].
Agreement other than in accordance with that Agreement. It would run counter to this scheme for a joint standard to be interpreted in New Zealand in a manner that is likely to result in material differences in the way in which a joint food standard is interpreted and applied as between the two countries.
[89] It follows that significant caution is required when considering an argument such as that advanced by Bayer in this case, to the effect that a joint food standard — here, the FCB Standard — should be read down in light of a New Zealand-specific food standard. Acceding to a submission of this kind would risk undermining the joint nature of the FCB Standard, by adopting a New Zealand-specific interpretation of that standard. Moreover in circumstances such as the present, where the SF Standard was adopted after the FCB Standard, Bayer’s argument comes close to a submission that the SF Standard effectively amends the FCB Standard. Treating the SF Standard as having that effect would be inconsistent with art 5 of the ANZ Food Agreement.
[90] We therefore consider that the FCB Standard should be interpreted in accordance with the normal principles of interpretation, having regard to the wider context of the joint chapters of the Food Code in which it appears. However its interpretation should not be influenced by the terms of the SF Standard, in the absence of a clear indication that the SF Standard was intended to modify the scope of the FCB Standard. There is no such indication in the present case.
[91] It follows that the correct approach to categorising Berocca Forward is to determine whether it is an FCB as defined in Standard 1.1.2—6 of the Food Code. If it is, then it cannot be a supplemented food even if it would otherwise fall within the definition in Standard 1.3(1) of the SF Standard, as Standard 1.3(2)(e) expressly provides that an FCB as defined in Standard 1.1.2—6 of the Food Code is not a supplemented food.
Is Berocca Forward an FCB?
[92] We therefore turn to the definition of an FCB in Standard 1.1.2—6(1), which we set out again for ease of reference:
1.1.2 —6 Definition of formulated caffeinated beverage
(1)In this Code:
formulated caffeinated beverage means a flavoured, non-alcoholic beverage, or a flavoured, non-alcoholic beverage to which other substances (for example, carbohydrates, amino acids, vitamins) have been added, that:
(a)contains caffeine; and
(b)has the purpose of enhancing mental performance.
[93] Berocca Forward is a flavoured, non-alcoholic beverage to which other substances have been added. It contains caffeine. So the High Court Judge was in our view right to identify as the central issue in this case whether Berocca Forward has the purpose of enhancing mental performance.
[94] The text of this definition does not suggest that the purpose of enhancing mental performance must be the sole purpose of the product, or its primary purpose. If a more stringent requirement along those lines was intended, it would have been a simple matter to include language to that effect. Nor is there any reason to think that the purpose of the FCB Standard — the appropriate regulation of FCBs to ensure their safety and suitability — would be advanced by reading the definition in this more restricted manner. To the contrary, there is real force in MPI’s submission that reading the definition in this restrictive way would undermine the FCB Standard, and the Food Code more generally, by limiting the products to which it would apply even though those products engage the policy concerns that led to the adoption of the FCB Standard. Indeed we see real difficulty in giving any sensible practical effect to such a reading. Counsel for Bayer was not able to explain to us how a “sole purpose” or “primary purpose” requirement would operate in practice. For many beverages containing water, caffeine and flavouring substances, hydration is likely to be one relevant purpose, alongside other purposes such as nutrition, enhancing
physical or mental performance, and sensory pleasure. We suspect that few beverages have one purpose only. And we struggle to see how one might go about ascribing a primary purpose to a beverage which has multiple effects and multiple purposes.
[95] Rather, we consider that a beverage is an FCB if it meets the requirements in the body of the definition in Standard 1.1.2—6(1) and in subpara (a), and that product has a material or non-negligible purpose of enhancing mental performance.
[96] The mental performance that is enhanced must, obviously, be the mental performance of the person who consumes the product. Whether or not a product has the purpose of enhancing mental performance can only sensibly be assessed by reference to the purpose for which the product will be used: that is, the purpose for which it is consumed. We agree with the Judge that the relevant inquiry must therefore focus on the purpose for which consumers would consume the product. That inquiry will be informed by a number of factors, including:
(a)The composition of the product.
(b)The effects that consumption of the products is likely to have on the consumer. A consumer who experiences enhanced mental performance as a result of consuming a product is likely to treat that as one of the purposes of the product when making future consumption decisions.
(c)The presentation, labelling and marketing of the product. These are likely to convey relevant information to consumers about the purposes that the product is capable of serving, and the purposes for which a consumer may wish to purchase and consume it.
[97] Bayer accepted that one of the purposes of Berocca Forward is the enhancement of mental performance. We consider that concession was inevitable, for the reasons given by the High Court Judge and developed by the respondents in their submissions on appeal. In particular, the composition of the product is designed to have the effect of enhancing mental performance, as the initial marketing of
the product confirmed. The product can be expected to have that effect, as the expert evidence filed by Bayer confirms. That effect — and as a result, that purpose of consumption — remain relevant and material despite the changes Bayer has made to the product’s labelling.
[98] We also agree with the High Court Judge that the overall presentation of the product, and the connection made with other Berocca products which have the purpose of enhancing mental performance, provide further confirmation that Berocca Forward has that purpose.
[99] It follows that Berocca Forward comes within the definition of an FCB, and that Bayer’s appeal must be dismissed.
[100] We express no view on whether Berocca Forward comes within the definition of a supplemented food in Standard 1.3(1) of the SF Standard. As explained at [91] above, that is irrelevant if Berocca Forward is an FCB.
[101] We also express no view on whether Berocca Forward is a dietary supplement as defined in the Dietary Supplements Regulations, or on the regulatory implications of a product being both a dietary supplement and an FCB. These are potentially complex issues that were not before us on this appeal.
[102] We agree with the Judge that it is not necessary to determine whether MPI is right to describe Berocca Forward as an “energy drink”. That is an imprecise label that is not used in the legislation, and that we do not find helpful in applying the relevant provisions in the Food Code.
Some observations about the regulatory regime for food in New Zealand
[103] Despite the conclusion we have reached, we have some sympathy for the frustrations Bayer expressed about the state of the current regulatory regime for food in New Zealand. The interplay between different parts of the regime — in particular, the Food Code, the SF Standard and the Dietary Supplements Regulations
— is complex and gives rise to some unsatisfactory tensions and inconsistencies. The continued operation of the Dietary Supplements Regulations under the Food Act
was always intended to be a transitional measure: hence the expiry date of 1 March 2021 prescribed in s 413(3)(b) of that Act. An extension of that expiry date may now be inevitable, in the absence of a replacement regime. But it seems to us that the unsatisfactory state of this framework requires prompt attention: the already prolonged transitional arrangements should not be permitted to continue indefinitely.
Confidentiality orders
[104] The evidence in this case included some commercially sensitive and confidential information in relation to the Berocca Forward product and the Berocca range more generally. In the High Court orders were made by consent protecting that commercially sensitive and confidential information. Bayer sought similar orders in this Court, to the effect that:
(a)all commercially sensitive and confidential information marked in grey in the affidavit of Natalie Acevski dated 2 September 2019 (the Information) is kept confidential on the Court file and not made available for inspection;
(b)the Court file be marked accordingly, and that the applicant is notified of any request to access the file pursuant to the Senior Courts (Access to Court Documents) Rules 2017;
(c)the Information not be directly referred to in the public judgment in this matter; and
(d)no individual or organisation, apart from the applicant (whose information it is), may publish or disclose any of the Information.
[105] None of the Information, in respect of which confidentiality is sought, is material to our reasoning. It is not referred to in this judgment.
[106] MPI and Frucor indicated they would abide by the decision of this Court in relation to Bayer’s confidentiality application. We agree with the High Court Judge that confidentiality orders are appropriate in relation to the limited amount of
specifically identified information in respect of which they are sought. We will make orders that reflect sub-paragraphs (a), (b) and (d) above.
Costs
[107] Costs should follow the event in the ordinary way. MPI is entitled to costs for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.
[108] Frucor did not seek costs in respect of the substantive appeal. Frucor did seek an award of costs in respect of its successful application for joinder as second respondent. We consider that in circumstances where Frucor was served as a party in the High Court, it would have been preferable (and indeed, was arguably necessary) for Frucor to be named as a respondent on this appeal. Frucor’s application for joinder should not have been opposed. We therefore award costs to Frucor on this application under r 53GA of the Court of Appeal (Civil) Rules 2005, on a band A basis.
Result
[109]The appeal is dismissed.
[110] The appellant must pay costs to the first respondent for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.
[111] The appellant must pay costs to Frucor in respect of Frucor’s application for joinder as second respondent under r 53GA of the Court of Appeal (Civil) Rules, on a band A basis.
[112]We direct that:
(a)all information marked in grey in the affidavit of Natalie Acevski dated 2 September 2019 (the Information) must be kept confidential on the Court file and not made available for inspection;
(b)the Court file should be marked accordingly;
(c)the appellant must be notified of any request to access the file pursuant to the Senior Courts (Access to Court Documents) Rules; and
(d)no individual or organisation, apart from the appellant, may publish or disclose any of the Information.
Solicitors:
Simpson Grierson, Wellington for Appellant
Crown Law Office, Wellington for First Respondent Bell Gully, Auckland for Second Respondent
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