Z Ltd v Offshore Incorporations (Samoa) Ltd [2013] WSSC 33 (24 May 2013)

SUPREME COURT OF SAMOA

Z Ltd v Offshore Incorporations (Samoa) Ltd and Samoa International Finance Authority [2013] WSSC 33

Case name: Z Ltd v Offshore Incorporations (Samoa) Ltd and Samoa International Authority

Citation: [2013] WSSC 33

Decision date: 24 May 2013

Parties:
Z LTD a company incorporated in the People’s Republic of China. (Applicant) v OFFSHORE INCORPORATIONS (SAMOA) LTD in its capacity as the Resident Agent of Y Ltd a company incorporated in Samoa and having its registered office at Ground Floor, SNPF Building, Beach Road, Apia, Samoa (Respondent) and SAMOA INTERNATIONAL FINANCE AUTHORITY a body corporate established pursuant to the Samoa International Finance Authority Act 2005. (Third party)

Hearing date(s): 24 December 2012

File number(s): MISC 1083/10

Jurisdiction: CIVIL

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:

Representation:
S Leung Wai for applicant
L Stevenson for respondent
M T Lui for third party

Catchwords:

Words and phrases:
Norwich Pharmacal relief
Norwich Pharmacal jurisdiction
Proportionality

Legislations cited:
Samoa International Authority Act 2005
International Companies Act 1988

Cases cited:
Ashworth Security Hospital v MGN Ltd [2002] UKHL 29
British Steel v Granada Television [1981] AC 1096
Campaign Against Arms Trade v BAE System Plc [2007] EWHC 330;
Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723;
Mohamed, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048
Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133
Rugby Football Union v Viogogo Ltd [2011] EWCA 1585; [2012] UKSC 55.

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

MISC 1083/10

IN THE MATTER

of section 227, International Companies Act 1988.

BETWEEN:

Z LTD a company incorporated in the People’s Republic of China.

Applicant

A N D:

OFFSHORE INCORPORATIONS (SAMOA) LIMITED in its capacity as the Resident Agent of Y Ltd a company incorporated in Samoa and having its registered office at Ground Floor, SNPF Building, Beach Road, Apia, Samoa.

Respondent

A N D:

SAMOA INTERNATIONAL FINANCE AUTHORITY a body corporate established pursuant to the Samoa International Finance Authority Act 2005.

Third party

Counsel:

S Leung Wai for applicant

L Stevenson for respondent

M T Lui for third party

Hearing:

24 December 2012 (in camera)

Oral Judgment: 24 December 2012 (in camera)

Written Judgment: 24 May 2013

JUDGMENT OF SAPOLU CJ

Non – publication of this judgment

1. Copies of this judgment are given to counsel and their respective clients. A copy of the judgment is also given to Ms Brenda Heather-Latu the new counsel engaged by the applicant. No copy of this judgment is to be published in any manner without the approval of all parties. However, as this matter is going up to the Court of Appeal, this order is subject to any order to be made by that Court. This order also does not apply to copies of my judgment to be included in the records of appeal for the Court of Appeal.

The parties

2. The applicant Z is a company registered and operating pursuant to the laws of the People’s Republic of China. Its principal activity is the manufacture and sale of equipment.
3. The respondent Offshore Incorporations (Samoa) Ltd (OIL) is a trustee company under the International Companies Act 1988 and is the resident agent of Y which is an international company registered under the same Act.
4. The third party the Samoa International Finance Authority (SIFA) is a body corporate established pursuant to the Samoa International Authority Act 2005 and is responsible for administering the International Companies Act 1988. I had decided to join SIFA as third party because of its obvious and significant interest in the conduct and outcome of these proceedings. There was no opposition from counsel for the applicant or counsel for the respondent.

The proceedings

5. On 6 December 2012, this Court made ex parte orders against the respondent OIL pursuant to an ex parte motion by the applicant. These orders were (a) a gag order, (b) a sealing order, and (c) an order by way of Norwich Pharmacal relief requiring the respondent to disclose and deliver to the applicant copies of all documentation related to any companies for which the respondent acts as resident agent in Samoa that are owned or controlled by Y Ltd or its principals. It is that order for disclosure that is the real issue in these proceedings.
6. These proceedings are concerned with an application by the respondent OIL to stay the ex parte orders of 6 December 2012 and a motion by the third party SIFA to vary or discharge the same orders. Although the motion as prepared by counsel for the third party appears to seek a variation of the ex parte orders, it is clear from the supporting affidavit of the chief executive officer of SIFA, who is also the Registrar of International and Foreign Companies, that what SIFA really wants is a variation or discharge of the orders. I will therefore treat the third party’s motion as one for variation or discharge of the orders.
   7. The proceedings were heard in camera on 24 December 2012. After hearing submissions from all counsel, I gave a brief oral decision discharging the ex parte orders. Everyone then went away for Christmas and New Year’s holidays. About two weeks ago, I was advised by my assistant registrar that there is an appeal against my oral decision. I then called an in chambers meeting with all counsel as to the status of the appeal that has been filed and informed counsel that I had not prepared any written judgment as I was not aware that any appeal had been filed. I had thought that my brief oral decision had settled this matter. Counsel for the applicant indicated that he wants to obtain further instructions from the applicant whether to continue with the appeal as he has not received any further instructions from the applicant since the appeal was filed on 22 January 2012. I granted the request from counsel for the applicant. Two or three days later, that is, on Monday 13 May, which was a public holiday (Mother’s Day), my assistant registrar gave me an email from counsel for the applicant that the applicant wants to proceed with the appeal. The next day, Tuesday 14 May, all counsel were advised to meet with me again in chambers the next morning, Wednesday 15 May. At that meeting I informed counsel, including Ms Heather-Latu now engaged as counsel by the applicant, that the applicant wants to proceed with its appeal. I also told counsel that I need to prepare a written judgment as this matter is now going to the Court of Appeal. It was then that Ms Stowers appearing for the respondent said that when the appeal was filed the other parties were not served. Perhaps this goes to explain why I was not aware of this appeal until about two weeks before my meeting with counsel in chambers on 15 May otherwise I would have prepared a written judgment well before now.

Background

8. The facts of this case are complex. Essentially, a company called W Ltd entered into an agreement in 2009 for the supply and purchase of equipments with a company which I would call “Company A” which is incorporated pursuant to the laws of the People’s Republic of China. Another company which I would call “Company B” and which is incorporated pursuant to the laws of the British Virgin Islands is the parent company of Company A. Company B executed a guarantee in favour of W Ltd to secure the payment and performance by Company A of its obligations, liabilities and indemnities under the supply and purchase agreement with W Ltd. Subsequently, W Ltd assigned its rights and obligations under the supply and purchase agreement to Z Limited which is the applicant in these proceedings.
9. Company A then defaulted under various provisions of the supply and purchase agreement in not making progress payments and failing to place orders for supplies. As a result, Z Ltd commenced arbitration proceedings in Hong Kong against Company B pursuant to its guarantee. In 2012, the arbitral tribunal in Hong Kong gave an interim order and award which included an order that Company B was not to dispose of or diminish any of its assets wherever located including, inter alia, its shares in a company which I would call “Company C” which is incorporated pursuant to the laws of Hong Kong and is a wholly-owned subsidiary of Company B.
10. A hearing on the merits in the arbitration was then held in 2012. In the same year, the arbitral tribunal in Hong Kong published a final award of damages to the value of hundreds of millions of USD in favour of Z Ltd against Company B.
11. According to Z Ltd, after the publication of the final award by the arbitral tribunal, it discovered that Company C had transferred its total shareholding in a company which I would call “Company D” to another company which I would call “Company E” for a consideration of RMB 60 million. This had occurred on or around 3 May 2012 which was between the time of the interim order and award made by the arbitral tribunal in Hong Kong on 16 April 2012 and the time of the final award published by the arbitral tribunal on 8 August 2012. It is claimed by Z Ltd that this transfer by Company C (a wholly- owned subsidiary of Company B) of its shares in Company D to Company E was contrary to the terms of the interim order and award made by the arbitral tribunal in favour of Z Ltd against Company B.
12. Z Ltd also claims that Company E is a wholly-owned subsidiary of Y Ltd which is an international company registered under the International Companies Act 1988 and that Y is ultimately beneficially owned and controlled by an individual I would call “Mr X” who is the chairman and controlling mind of Company B. Z Ltd further claims that it has evidence to suggest that the share transfer by Company C of its total shareholding in Company D to Company E is part of a fraudulent scheme undertaken to dissipate assets from Company B’s corporate structure.
13. Furthermore, Z Ltd claims that Mr X, which it alleges to be the ultimate beneficial owner of Y Ltd and chairman and controlling mind of Company B, had held a 90% shareholding in Company E from 14 August 2008 to 9 January 2009. On 9 January 2009, Mr X transferred his shares in Company E to Y Ltd. It would appear that that was done before the execution on 3 March 2009 of the supply and purchase agreement between Z Ltd and Company A from which these proceedings originated.
14. On 20 November 2012, Z Ltd filed an ex parte motion seeking against the respondent OIL, (a) a gag order, (b) a sealing order, and (c) an order by way Norwich Pharmacal relief for disclosure of documents. On 6 December 2012, I granted the motion and the orders sought. The gag order was to forbid OIL and its legal representatives from disclosing to anyone the fact of Z Ltd’s ex parte motion as well as the contents of the motion and related materials. The sealing order required the registrar of the Court to seal the record of Z Ltd’s ex parte proceedings and not to disclose to any person, except OIL and its legal representatives, any documents or evidence filed in connection with Z Ltd’s ex parte proceedings. The order for disclosure by way of Norwich Pharmacal relief required OIL to disclose and deliver by 4pm on 7 December 2012 to Z Ltd’s legal representative in Samoa (a) copies of all books, records, and other materials in its possession, custody, power, or control relating to Y Ltd, and (b) copies of all “documentation” related to or connected with any companies for which OIL acts as resident agent that are owned or controlled by Y Ltd or its principals. The information required by Z Ltd from the said “documentation” is quite detailed and suggests a comprehensive and thorough inquiry into the books and records of OIL.
15. On 10 December 2012, the respondent OIL filed a memorandum to the Court and on 11 December 2012 it filed an amended memorandum. These memorandums seek a stay of the ex parte orders granted on 6 December 2012 on the ground that those orders were in conflict with the provisions of s.227 of the International Companies Act 1988. I must say that a proper motion or application, instead of memorandums, should have been filed to stay the orders. Since there was no opposition from counsel for the applicant Z Ltd, I will treat the memorandums from the respondent OIL as constituting an application to stay.
16. On 19 December 2012, the third party SIFA filed a motion for joinder and for the ex parte orders granted on 6 December 2012 to be varied or discharged on the ground that the orders are contrary to the provisions of s.227 of the International Companies Act 1988. I granted the motion for joinder by making SIFA a third party.

Reasons for my decision to discharge the ex parte orders

17. I decided to discharge the ex parte orders granted in favour of Z Ltd against OIL because I considered that, in the exercise of my discretion, those orders should not have been granted.

Disclosure by way of Norwich Pharmacal relief

(a) The Norwich Pharmacal jurisdiction

18. I do not propose to refer to all the various aspects of the Norwich Pharmacal jurisdiction. It would be sufficient to refer only to those aspects of the jurisdiction which are relevant to this case. But it is worth noting that it appears from the English authorities that the Norwich Pharmacal jurisdiction is still in a state of development on a case by case basis. As Lord Denning MR pointed out in British Steel v Granada Television [1981] AC 1096, 1127, the Norwich Pharmacal case opened a ‘new chapter’ in English law.
19. The Norwich Pharmacal principle is seen to be encapsulated in the often-quoted passage from the judgment of Lord Reid in Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133, 175 where His Lordship stated:

“They [the authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration”.

20. Lord Reid then went on to say that the respondent must disclose the information ‘unless there is some consideration of public policy which prevents that’. This would be consistent with the equitable and discretionary nature of Norwich Pharmacal relief.
21. In Ashworth Security Hospital v MGN Ltd [2002] UKHL 29 which was concerned with the discovery of the source who had divulged to the press confidential information on hospital patients in breach of confidence and in breach of contract, Lord Woolf explained the Norwich Pharmacal case in these terms at para 26:

“Under this [Norwich Pharmacal] jurisdiction, there is no requirement that the person against whom the proceedings have been brought should be an actual wrongdoer who has committed a tort or breached a contract or committed some other civil or criminal wrongful act. In Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133 itself, the Customs and Excise Commissioners were an entirely innocent party. The Commissioners had, however, because of their statutory responsibilities become involved or mixed up in the illicit importation of the chemicals manufactured abroad which Norwich Pharmacal alleged infringed their patent. The Norwich Pharmacal case clearly establishes that where a person, albeit innocently, and without incurring any personal liability, becomes involved in a wrongful act of another, that person thereby comes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer. While therefore the exercise of the jurisdiction does require that there should be wrongdoing, the wrongdoing which is required is the wrongdoing of the person whose identity the claimant is seeking to establish and not that of the person against whom the proceedings are brought”

(b) The Norwich Pharmacal jurisdiction is still developing

22. Counsel are cautioned against reading the Norwich Pharmacal case and then stop there. This is because the English authorities do show that the English Courts are still in the process of developing this important discretionary equitable jurisdiction. This was made clear in Ashworth Security Hospital v MGN Ltd [2002] UKHL 29, para 57 where Lord Woolf stated:

“The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the Courts when they are satisfied that it is necessary that it should be exercised. New situations are inevitably going to arise where it will be appropriate for the jurisdiction to be exercised where it has not been exercised previously. The limits which applied to its use in its infancy should not be allowed to stultify its use now that it has become a valuable and mature remedy. That new circumstances for its appropriate use will continue to arise is illustrated by the decision of Sir Richard Scott V-C in P v T Ltd [1997] 1 WLR 1309 (where relief was granted because it was necessary in the interests of justice albeit that the claimant was not able to indentify without discovery what would be the appropriate cause of action)”

23. In fact in Ashworth Security Hospital v MGN Ltd [2002] UKHL 29 when that case was before the English Court of Appeal, Lord Phillips MR extended the application of the Norwich Pharmacal jurisdiction beyond the field of torts. The Master of the Rolls stated at paras 61, 62:

“61. I can see no basis in principle for confining Norwich Pharmacal to cases involving tort. On the contrary the principle in Norwich Pharmacal should be one of general application. Under it jurisdiction to order disclosure of the identity of wrongdoers should exist in equity wherever the person against whom disclosure is sought has got ‘mixed up’ in wrongful conduct that infringes a claimant’s legal rights. That general principle emerges from the judgments of Lord Morris, Viscount Dilhorne, Lord Cross and Lord Kilbrandon. I do not believe that Lord Reid’s reference to ‘tortious acts’ was any more than a reflection of the fact that the relevant wrongdoing in Norwich Pharmacal was tortious

62. Do the authorities preclude extending the Norwich Pharmacal jurisdiction beyond the field of tort? We have been referred to a number of cases in which the jurisdiction was invoked in cases which involved tort: British Steel v Granada Television [1981] 1 WLR 1096; X Ltd v Morgan-Crompian [1991]1 AC 1;Ricci v Chow [1987]1 WLR 1658. In each of these, express reference was made to the fact that the wrongdoing in respect of which the jurisdiction was invoked was tortious. I do not consider that any of them precludes this Court from applying the principle in Norwich Pharmacal more widely. We have been referred to no decision which has held, in terms, that the principle is restricted to cases involving tort”.

(c) The requirements to be satisfied for Norwich Pharmacal relief

24. From what is said by Thomas LJ in delivering the judgment of the Court in Ashworth Security Hospital v MGN Ltd [2002] UKHL 29 para 64, the requirements to be satisfied in order for Norwich Pharmacal relief to be granted may be stated as follows:

(a) Was there a wrongdoing?

(b) Was the respondent, however innocently, involved in the arguable wrongdoing?

(c) Was the information necessary?

(d) Was the information sought within the scope of the available relief?

(e) Should the Court exercise its discretion in favour of granting relief?

25. It would be helpful in understanding how the above requirements could be applied to the facts of a case to read Mohamed, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048. Except for the question of whether the Court should exercise its discretion in favour of granting relief, I will, given the circumstances, assume without deciding that the other requirements for the exercise of the Norwich Pharmacal jurisdiction exist in this case.

(d) Exercise of discretion

26. Norwich Pharmacal relief is an exceptional remedy. It is an equitable remedy. As such it is discretionary. Considerations of proportionality are relevant to the exercise of the discretion: see, for example, Golden Eye (International) Ltd v Telefonica UK Ltd [2012] EWHC 723; Campaign Against Arms Trade v BAE System Plc [2007] EWHC 330; Rugby Football Union v Viogogo Ltd [2011] EWCA 1585; [2012] UKSC 55.
27. In the affidavit filed by the chief executive officer of SIFA who is also the Registrar of International and Foreign Companies and is responsible for administering the International Companies Act 1988 she says and I quote:

“13. The main reason for promotional efforts of SIFA is to attract investment into Samoa as an offshore center. Obviously the main reason we want to attract investment into Samoa is to promote economic growth. Further such investments almost always mean creation of new employment for the people of Samoa. In 2006, a Cost and Benefit Analysis that was commissioned by SIFA indicated that such investments created 60 new employment for Samoan residents, with a multiplier effect to reach over 200 Samoan families. In terms of SIFA’s financial contribution, more than $100,000,000 tala was contributed to the Government of Samoa’s budget since 1988.

14. Samoa’s offshore finance center was established as a means of further diversifying its economy about twenty years ago, following careful consideration of the risks inherent in such operations. Given its strong and distinctly conservative culture, Samoa chose to build its offshore finance center through the exercise of prudence and an unwavering commitment to maintaining a reputable image.

15. Once of the main selling points and attractive feature of Samoa that SIFA utilises in its promotional efforts is the fact that Samoa has in place effective privacy laws that protect the investors and their customers.

16. Accordingly as I understand it, the current order of the Supreme Court which orders the disclosure of confidential documents contrary to section 227 of the IC Act will mean that a precedent will be set that the privacy laws in place provide no real guarantee to the investors and their customers.

17. Obviously this Court Order will have an adverse effect on the offshore market in Samoa because the conceptual image of SIFA being advertised and promoted to foreign investors, as an independent sovereign nation with strict privacy laws in place will be perceived by investors as misleading.

18. The disregard for privacy laws will scare off investors. Privacy laws are for the protection and security of the investors and customers; privacy laws instill confidence in investors. In addition, privacy laws is a selling tool for the promotion of offshore financial services in Samoa. To undermine these privacy laws and to take it away will harm the reputation of the offshore center in Samoa as well as break down any confidence that the offshore financial sector in Samoa has worked years to promote. The Offshore financial center in Samoa has worked hard for years to build up a solid reputation in the offshore financial business for Samoa (including the promotion of its secrecy laws to instill confidence) and to undermine these laws would be to ruin that reputation.

19. It must be noted here that attracting offshore clients (including international companies) is not an easy feat given the numerous competing offshore financial centers all over the world, for example, Cook Islands, Vanuatu, Marshall Islands, British Virgin Islands, and the Bahamas. Therefore the efforts that go into marketing and promotion will all be wasted and undermined if the privacy laws are not enforced.

20. Another paramount concern for SIFA is that given the implication of this Court order if allowed to stand, I am not sure if the offshore center in Samoa will be able to withstand it”

28. It is clear from what the chief executive officer of SIFA is saying in her affidavit that SIFA is making quite a substantial contribution to the economic well-being of our country. It is not a kind of institution that is unique to Samoa. There are similar offshore financial centers in other countries all over the world. SIFA has had to compete in the offshore market with those financial centers. Through much hard work over the years in its promotional efforts, SIFA has succeeded in building up a solid reputation for Samoa as an attractive offshore financial center. One of the main selling points used by SIFA in its promotional efforts is our effective privacy laws. The grave concern of SIFA’s chief executive is that if the ex parte order for disclosure made on 6 December 2012 is allowed to stand, it would undermine the privacy laws which is one of the main selling points used by SIFA to promote Samoa as an offshore financial center. This would be creating a precedent which could lead to the demise of SIFA which is contributing so much to the economy of the country. This is new information which was not before me when the ex parte orders were made on 6 December 2012.
29. Essentially, the reason why Z Ltd is seeking disclosure of the documentation in the possession, custody, power, or control of OIL is to find out whether they contain any information which will assist it to bring possible legal actions in the People’s Republic of China against Mr X, Company B, some or all of the entities associated with Company B, Y Ltd, and Company E. In my respectful view, the impact of the ex parte order for disclosure by way of Norwich Pharmacal relief on SIFA is that it could lead to its closing down. This will be disproportionate to any inconvenience to Z Ltd if the order is discharged. This is the proportionality factor.
30. Furthermore, both counsel for SIFA and OIL referred to the privacy provisions of s.227 of the International Companies Act 1988. Section 227(1) and (2) provide, inter alia, that it is an offence for any person to divulge or attempts to divulge , offers, or threatens to divulge any information or communication of an international company which relates to or concerns:

(a) the shareholding or beneficial ownership of any share in such a company;

(b) the identity of any member of such a company or the interest of such a member in such a company;

(c) the management or officers of such a company;

(d) any of the business, financial or other affairs, or transactions of such a company;

(e) the assets or liabilities of such a company; or

(f) the contents of any register maintained by such a company.

31. Section 227 (3) then provides for limited circumstances in which disclosure is allowed. None of those circumstances is relevant to these proceedings. However, s.227 (4) provides that despite s.227 (3), SIFA may in its absolute discretion prohibit any disclosure of information allowed under this Act or require that any such disclosure be subject to restrictions or an undertaking that confidentiality will be maintained.
32. Section 227 (7) which was pointed out by counsel for the applicant provides that the Court may require any person to produce documents or to give evidence in any criminal procedures or in any criminal proceedings alleging fraud or other dishonesty if the document or evidence is relevant in such proceedings under the laws of Samoa. This provision gives the Court discretionary power to order production of documents or the giving of evidence in criminal or civil proceedings. It would seem to me that s.227 (7) must be referring to criminal or civil proceedings tried in Samoa and not in some other jurisdiction. But even if that is not so, there had been no criminal or civil proceedings commenced in mainland China or Hong Kong where the alleged misconduct occurred. What is happening here is that the applicant is searching for information to support the causes of action that its legal advisers want to bring in China. In my respectful view, one must not treat lightly the fact that we are dealing here with an offshore center and the legislature has decided to confer privacy and confidentiality on information in its possession or under its control. This is crucial to the existence of the offshore center and its continuing contribution to the economy of the country as it appears from the affidavit of SIFA’s chief executive. Thus the privacy and confidentiality which has been given by the legislature to information held by international companies is crucial and is not to be easily or lightly removed. This is a consideration to be weighed in the balance in the exercise of the Court’s discretion.
33. 33. Section 227B (1) gives the Court power to order inspection of the records and registers of an international company. But this is only in limited circumstances, that is to say, in proceedings for liquidation of an international company or where an international company or any of its officers is convicted of an offence under the Act. None of these exceptions is also relevant to these proceedings.
34. Thus the confidentiality provisions of s.227 (1) and (2) is an important factor to be borne in mind in construing the provisions of that section as a whole. The limited exceptions provided in s.227 (3) and (7) as well as s.227B (1) also go to emphasise the importance of confidentiality.
35. The answer to the question of whether the Court’s discretion should be exercised in favour of granting disclosure by way of Norwich Pharmacal relief should therefore be answered in the negative. It follows that the ex parte order for disclosure granted to Z Ltd on 6 December 2012 is discharged. The ex parte gag order and sealing order are also discharged. They no longer serve any useful purpose.

Motion of committal for contempt

36. The applicant did not pursue its motion of committal for contempt against the respondent OIL. I therefore make no decision on that motion.

Conclusions

37. For the foregoing reasons, the ex parte order for disclosure made on 6 December 2012 is discharged.
38. As the ex parte gag order and sealing order made on 6 December 2012 no longer serve any useful purpose, they are also discharged.
39. The result of these proceedings, however, would remain confidential. Counsel are given seven (7) days to make application whether they want the record of these proceedings to be sealed and to remain confidential.
    

CHIEF JUSTICE

Solicitors

Leung Wai Law Firm for applicant

Stevenson Lawyers for respondent

Attorney-General’s Office, Apia, for third party