New South Wales Court of Appeal CITATION: NICHOLLS v MICHAEL WILSON & PARTNERS LIMITED [2010] NSWCA 222 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 26, 27, 28, 29, 30 July 2010 JUDGMENT DATE: 15 September 2010 JUDGMENT OF: Basten JA at 1; Young JA at 114; Lindgren AJA at 190 (1) On the motion of the appellants, admit as further evidence pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) (a) the second interim award of the London Arbitrators made on 22 February 2010; (b) the 17th procedural order made by the London Arbitrators on 24 March 2010, and (c) the Clarification made by the London Arbitrators on 6 April 2010. (2) On the motion of the respondent, admit as further evidence pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) (a) bundle of documents constituting Exhibit JR1, and DECISION: (b) bundle of documents constituting Exhibit JR2 each being exhibited to the affidavit of James Malcolm Robinson sworn 18 June 2010. (3) Allow the appeal from the judgments in the Equity Division delivered on 6 October 2009 and 11 December 2009 and set aside the declarations and orders 1-33 made on 11 December 2009. (4) Direct that there be a further hearing of the proceedings in the Equity Division, but that the trial not commence until the determination of the appeal against the second interim award of the Arbitral Tribunal made on 22 February 2010 in London or, if the appeal is upheld and the Tribunal required to reconsider its reasons in any respect, until the redetermination has been made. (5) Dismiss the cross-appeal. (6) Order that the respondent pay the appellants' costs, including reserved costs, in this Court. (7) The costs incurred to date in the Equity Division are to abide the outcome of the further hearing in the Division and are to be determined by the judge conducting the further hearing. CATCHWORDS: ABUSE OF PROCESS - respondent proceeding in Supreme Court against accessories and in an arbitration in London against the principal wrongdoer - judgment and orders made at trial against the accessories - subsequently principal wrongdoer found liable but only on limited basis in London arbitration - whether abuse of process for respondent to seek on appeal to maintain enforceability of judgment and orders in light of inconsistent arbitration award - APPEAL - reasonable apprehension of bias - trial judge hearing ex parte applications over a lengthy period - confidentiality orders - closed court hearings - other party becoming aware of number and nature of ex parte applications, confidentiality orders and closed court late in the day - Judge refusing to recuse himself - whether fair minded bystander might consider that trial judge might not bring to bear a mind free of prejudice against the party in whose absence affidavits had been read and orders made - CHOICE OF LAW - employees of respondent company incorporated in British Virgin Islands and carrying on business in Kazakhstan - employed by respondent in Kazakhstan - whether trial Judge erred in holding that New South Wales law applied to claims in contract , tort and for breach of fiduciary duty - presumption that law of forum is the same as that of foreign country - whether presumption operated - whether presumption displaced - REMEDIES - equitable compensation - whether exemplary or punitive component can be included as part of a "robust" approach - declarations - whether declarations in appropriate form Arbitration Act 1966 (UK) Building and Construction Industry Security of Payment Act 1999 (NSW) Family Law Act 1975 (Cth), s 93A LEGISLATION CITED: Foreign Corporations (Application of Laws) Act 1989 (Cth), ss 3, 7 Supreme Court Act 1970 (NSW), s 75A Trade Practices Act 1974 (Cth), s 52 Uniform Civil Procedure Rules (NSW), r 14.14 CATEGORY: Principal judgment Akai Pty Limited v People's Insurance Co Ltd [1996] HCA 39; 188 CLR 418 Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 Armory v Delamirie (1722) 1 Stra 505; 93 ER 664; [1558]-[1774] All ER Rep 121 Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] 1 WLR 1041 AWG Group Ltd v Morrison [2006] 1 WLR 1163 Barnes v Addy (1874) LR 9 Ch App 244 Blain v The Doctor's Co 272 Cal Rptr 250 (Cal Ct App 1990) Brinsley v Lynton & Lynnmouth Hotel & Property Co [1895] WN (Eng) 53 Bristol & West Building Society v Mothew [1998] Ch 1 British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 CDJ v VAJ [1998] HCA 67 and 76; 197 CLR 172 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460 Council of NSW Bar Association v Davison [2006] NSWSC 699 Damberg v Damberg (2001) 52 NSWLR 492 Drinkwater v Caddyrack Pty Ltd (unrep NSWSC, 25.9.1997) Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190 Dyno Wesfarmers Limited v Knuckey [2003] NSWCA 375 Edwards v Noble [1971] HCA 54; 125 CLR 296 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; 56 NSWLR 298 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Kyrwood v Drinkwater [2000] NSWCA 126 Lee v Cha [2008] NSWCA 13 CASES CITED: Lloyd v Guibert (1865) LR 1 QB 115 Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 McKenzie v McDonald [1927] VLR 134 Michael Wilson & Partners Ltd v Nicholls [2009] NSWSC 505 Murakami v Wiryadi [2010] NSWCA 7 National Commercial Bank v Wimborne (1978) 5 BPR [97423] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54, 223 CLR 331 New Brunswick Railway Co v British and French Trust Corporation [1939] AC 1 Nocton v Ashburton [1914] AC 932 Paramasivam v Flynn (1998) 90 FCR 489 Pilmer v Duke Group Ltd [2001] HCA 31; 207 CLR 165 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 Reichel v Bishop of Oxford (1889) 14 App Cas 259 Reichel v McGrath (1989) 14 App Cas 665 Rickshaw Investments Ltd v Baron von Uexhell [2007] 3 LRC 223, [2006] SGCA 39 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 Rogers v The Queen [1994] HCA 42; 181 CLR 251 Ruthol Pty Ltd v Mills [2003] NSWCA 56; 11 BPR 20,793 Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577 Smits v Roach [2006] HCA 36; 277 CLR 423 State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Torts Reports § 81-423 Tannous v Mercantile Mutual Insurance [1978] 2 NSWLR 331 Target Holdings Ltd v Redfern [1996] AC 421 United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 Vakauta v Kelly (1988) 13 NSWLR 502 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Youyang Pty Ltd v Minter Ellison [1981] NSWCA 198 Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484 Borchard, Declaratory Judgments, 2nd Ed 1941 Broom's Legal Maxims (10th ed [1939]), p 191 Conaglen, Fiduciary Loyalty (Hart Publishing, (2010)) Dharmananda & Papamatheos (eds), Perspectives on Declaratory Relief (Federation Press, 2009) TEXTS CITED: Nygh's Conflict of Laws in Australia Spencer, Bower and Handley, Res Judicata (4th Ed 2009) at [1.08]-[1.09] Tilbury, Civil Remedies, Vol 1 (1990) T M Yeo, Choice of Law for Equitable Doctrines (OUP, 2004) Zamir & Woolf, The Declaratory Judgment 3rd ed 2002 Foreign Corporations (Application of Laws) Bill 1989 (Parl Debs, Senate, 21 December 1989) (Cth) p 4987 Robert Colin Nicholls (First Appellant/First Cross-Respondent) David Ross Slater (Second Appellant/Second Cross-Respondent) PARTIES: Temujin Services Limited (Third Appellant/Third Cross-Respondent) Temujin International Limited (Fourth Appellant/Fourth Cross-Respondent) Temujin International FZE (Fifth Appellant)/Fifth Cross-Respondent) Michael Wilson & Partners Limited (Respondent/Cross-Appellant) FILE NUMBER(S): CA 2009/298561 COUNSEL: G C Lindsay SC/G W McGrath/A Fox (Appellants/Cross-Respondents) M Walton SC/J Carney (Respondent/Cross-Appellant) SOLICITORS: Henry Davis York (Appellants/Cross-Respondents) Clayton Utz (Respondent/Cross-Appellant) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 50151 of 2006 LOWER COURT JUDICIAL OFFICER: Einstein J LOWER COURT DATE OF DECISION: 11 December 2009 LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 1033; [2009] NSWSC 1377 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298561 BASTEN JA YOUNG JA LINDGREN AJA 15 September 2010 ROBERT COLIN NICHOLLS, DAVID ROSS SLATER, TEMUJIN SERVICES LIMITED, TEMUJIN INTERNATIONAL LIMITED and TEMUJIN INTERNATIONAL FZE v MICHAEL WILSON & PARTNERS LIMITED Judgment 1 BASTEN JA: The background to this appeal has been recounted by Lindgren AJA. I address below the first ground of appeal raised by the appellants, namely that the primary judge should have recused himself when requested to do so, prior to the commencement of the trial. Apprehended bias (a) legal principles 2 On two occasions, in 2008 and 2009, the appellants requested the primary judge not to hear the trial, on the basis that he had made a series of pre-trial orders in circumstances which could give rise to a reasonable apprehension of bias. The approach to be applied in determining those applications was whether a fair-minded lay observer might have formed the opinion that the primary judge might not have brought a mind free from pre-judgment to the assessment of the case at the trial. On each occasion, his Honour rejected the application for recusal. 3 So stated, the approach required to be applied by the Court is a relatively undemanding one: that is because of the value placed by the law on not merely the fact, but the perception, that judges will determine cases on the material before them, uninfluenced by extraneous views, namely views formed otherwise than in the ordinary course of the trial, hearing from the parties on both sides of the record, and based on admissible evidence. On the other hand, the administration of justice would soon become unmanageable if judges were too readily disqualified because of pre-trial judgments, adverse to the interests of a particular party. The answer in a particular case will depend on the nature of the decision being made and the surrounding circumstances, a position which gives rise to important questions as to the knowledge and understanding of the proceedings which must be attributed to the hypothetical fair-minded lay observer. 4 As explained by Allsop P in British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 at [5]: "The fictitious 'fair-minded lay observer' and what he or she might think is a mechanism deployed by the courts for protecting the respect and integrity of the judicial system through a test employing a reasonable member of the public. That test involves an evaluation by judges as to how the public, through the posited 'fair-minded lay observer', would view the working of the legal system in the particular instance under consideration." 5 The assessment is complicated in the present case by the fact that the matters which might have created a reasonable apprehension of bias occurred in closed court. A question thus arises as to whether the hypothetical observer would take that fact into account, would consider the manner in which the events became known to the appellants and others entitled to observe the litigation, and the explanations given by the primary judge in his judgments on the recusal applications as to how his Honour viewed the matter. In accordance with principle, all of these matters are to be taken into account. As noted in Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [14]: "There was argument in this Court, prompted by [the trial judge's] explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation." 6 This passage raises a temporal issue which had relevance to the manner in which the appellants presented their case. If, at the time of the recusal applications, the test of reasonable apprehension of bias were satisfied, could the refusal of the application nevertheless be justified by reference to subsequent events or conduct? On the other hand, if the recusal application were properly refused on the material available at the time when it was made, should the final judgment nevertheless be set aside on appeal because, viewing the whole of the trial, the Court is satisfied that there was a reasonable apprehension of bias? 7 The correct approach to these questions may be found in the principles to be applied by this Court in considering an appeal against a final judgment. At least on one approach, where a recusal application, which should have been granted at the time it was made, was later shown to be unwarranted, the appeal should be dismissed on the basis that no substantial miscarriage of justice has eventuated. In the other circumstance, because the appeal is brought against the final judgment and is not in form an appeal against the failures to recuse, the judgment must be set aside if, on the material before the appeal court, a reasonable apprehension of bias is demonstrated. 8 Various explanations given in the cases as to the knowledge and attitudes of the fair-minded observer may be found in the judgment of Tobias JA in British American Tobacco at [78]-[103]. It is sufficient for present purposes, to note the passages from the judgment in Johnson relied on by his Honour at [81]-[82]: "[12] … The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice." 9 As was made clear by the references in footnotes to the judgment of McHugh JA in Vakauta v Kelly [1988] 13 NSWLR 502 at 527, and to its adoption by Toohey J in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 584-585, the description of the professional judge forms part of the knowledge against which the fictional lay observer assesses the conduct and behaviour in the particular case. 10 Because the hypothetical fair-minded observer is postulated to emphasise the purpose of maintaining public confidence in the administration of justice, the postulate has particular relevance in circumstances where a judge may have confidence in her or her colleague's ability to avoid prejudgment, but the lay observer may not. On the other hand, where the reviewing judge holds an apprehension of prejudgment it seems unnecessary to ask whether that apprehension would be shared by the lay observer. As the present case illustrates, to inquire into the mind of the lay observer may, in some circumstances, require the attribution of quite sophisticated knowledge about how the legal system usually operates. Without that knowledge, the lay observer may say, 'If that is how the system usually operates, I am content with that'. A judge may know that that is not how the system usually operates, or is not how it should operate. It might be thought sufficient for the reviewing judge to rely on his or her own apprehension of bias in such circumstances, rather than undertaking the wholly artificial exercise of transferring the knowledge of the professional to the hypothetical lay observer. To reiterate, the role of the lay observer may be critical in the reasoning process where the reviewing judge does not personally entertain a relevant apprehension. (b) factual background 11 In pursuing proceedings against the appellants, who were the defendants in the Court below, the respondent (which was the plaintiff in the Court below) obtained freezing orders in 2006 in relation to certain identified assets of the appellants, both in Australia and elsewhere. Further, the respondent took steps to "trace money flows and asset transfers" involving the appellants and other persons, through proceedings in various parts of the world. In particular, pursuant to orders made by Bergin J on 19 October 2006, affidavits were required to be filed by the individual appellants, Messrs Nicholls and Slater, identifying bank accounts and other assets in which they had interests (the disclosure affidavits). Pursuant to an agreement between the parties, orders restricting access to the disclosure affidavits to the respondent's legal representatives, were made by consent. 12 On 26 March 2007 the respondent filed a notice of motion, supported by affidavits, none of which were then served on the appellants, seeking orders in three categories, namely: (i) leave to issue a subpoena to Macquarie Bank Ltd, and consequential orders on return of the subpoena; (ii) an order varying the confidentiality requirements in the consent orders with respect to the disclosure affidavits, so as to permit "Mr Michael Earl Wilson, and the plaintiff's legal advisors retained in each of the UK, the BVI [British Virgin Islands], [the] Bahamas, the USA and Switzerland access to the affidavits filed by the defendants …"; (iii) leave for the respondent to use the disclosure affidavits and correspondence relating to them for the purposes of: "(a) the [respondent's] proposed ex parte proceedings for a receiver to be appointed over Incomeborts Ltd, Norgulf Holdings Ltd and Tigakhan Ltd in proceedings No 307 of 2006 commenced by the [respondent] in the Eastern Caribbean Supreme High Court of the British Virgin Islands; (b) considering the relief and remedies available to the [respondent] and possible proceedings in Switzerland." 13 The three companies named in the last order sought were believed by Mr Wilson to be the recipients of shares in a company known as Max Petroleum Plc with interests in hydrocarbon blocks in Kazakhstan. Max Petroleum was listed on the Alternative Investment Market of the London Stock Exchange on 27 October 2005. In an affidavit filed in support of the motion, Mr Michael Wilson stated: "Based on the matters referred to above I believe that Mr Emmott, Mr Nicholls and Mr Slater have each been rewarded (directly or indirectly) with shares, options or other significant benefits in relation to the respective transactions for work carried out by them during their employment by [the respondent] and for which they are required to account to [the respondent].": Affidavit par 22. 14 Mr Wilson further stated at par 44: "Based upon Mr Slater's attempts to raise $US10 million, and Mr Nicholls' apparent involvement in that process, from investors in Australia …, and the fact that he offers the shares which Incomeborts and Norgulf hold in Max, I believe that: (a) both Mr Nicholls and Mr Slater have an interest in Incomeborts and/or Norgulf on the basis that they were offering shares held by those companies in Max as security for a loan to Temujin; (b) both Mr Nicholls and Mr Slater through Incomeborts and/or Norgulf benefited from the Max floatation as did Mr Risby [sic] through the companies of which he is a director and which gained a significant shareholding in Max upon its listing on AIM …." 15 Mr David Risbey was said to be a director of Tigakhan. He was not a party to the current proceedings in this State. 16 The respondent relied upon a "confidential affidavit" dated 26 March 2007 of Katherine Jane Dixon, a special counsel employed by Clayton Utz Lawyers, acting for the respondent. The affidavit, which contained information obtained from the disclosure affidavits, was described as "confidential" in order to comply with the requirements of an order made by Bergin J, by consent of the parties, on 26 October 2006. Ms Dixon asserted that there were discrepancies in relation to the contents of the disclosure affidavits, when they were compared with other material available to the respondent: par 5. 17 In a second affidavit of the same date, Ms Dixon set out her understanding of the various proceedings instituted by the respondent in the jurisdictions identified above and stated (par 11): "In my opinion, the stage has been reached where it is necessary for me to seek instructions from Mr Wilson in respect of the matters contained in the Disclosure Affidavits sworn in these proceedings. This is principally because the material is relevant to a complete understanding of the activities of the [appellants] which is necessary for the ongoing tracing exercises that are being undertaken. In order to seek proper instructions from the [respondent], the basis upon which instructions are being sought needs to be disclosed to Mr Wilson, and those that assist him in the task of tracing exercises and identification of assets for preservation." 18 Ms Dixon also stated that she had been "informed by Mr Wilson" and believed that "the contents of the Disclosure Affidavits may well be relevant to applications to be made in the jurisdictions identified earlier in this affidavit for the further securing of asset preservation and tracing exercise": at par 12. (Why the Court was being asked to rely upon an opinion of Mr Wilson, who had not seen the disclosure affidavits and did not know their contents, is unclear and was not explored in Court.) On the basis of that uninformed opinion, she sought that "the Disclosure Affidavits also be available for use in the identified jurisdictions". 19 Finally, Ms Dixon noted the purpose for which the affidavits would be used if the respondent were released from its implied undertaking not to use them otherwise than for the purposes for which they had been obtained: affidavit, par 13. They were sought to be used: (i) "In undertaking the complicated asset preservation and tracing exercise that is necessary to be performed, to not only obtain complete relief against each of the [appellants] in the NSW proceedings but also against Mr Emmott in the UK proceedings and Temujin and others in the BVI proceedings;" (ii) "To use the documents for further applications that are needed from time to time in the British Virgin Islands, in particular the proposed Application to the BVI Court to appoint a Receiver over companies associated with Mr Nicholls and Mr Slater", and (iii) "In relation to the proceedings being contemplated in Switzerland". 20 The basis on which the Court was being invited to sanction a unilateral departure by the respondent from its agreement with the appellants, as encapsulated in the consent orders, was not explained. Nor was it explained why the appellants could not be heard on that issue. 21 Ms Dixon's somewhat coy reference to "proceedings being contemplated in Switzerland" was the subject of elaboration in the affidavit of Mr Wilson of 26 March 2007. First, in relation to a topic which he identified by a heading in his affidavit as "Swiss Criminal Proceedings", Mr Wilson stated: "75 I understand that the best course of action to get information and/or preserve any assets which may be held by Mr Emmott, Mr Risbey and/or the entities controlled by them in Switzerland is to make a criminal complaint against each of them to the Swiss authorities. 76 I believe that, in order to obtain relevant information and to put measures in place to protect assets which are alleged to belong to MWP, criminal proceedings are the most appropriate forum to obtain the relief sought. That is the case as the Swiss authorities are not restricted by Swiss banking legislation regarding privacy. I believe that the nature of the charges that would be laid under the Swiss penal code against each of Mr Risbey and Mr Emmott include embezzlement, money laundering, forgery and disloyal management." 22 That the orders were sought by the respondent, partly in aid of criminal proceedings, and for the principal (if not the sole) purpose of providing information for further civil action, should have raised a question as to the propriety to the course being undertaken before the primary judge. That the proposed course did not directly involve the appellants should have raised a further question. 23 Mr Wilson also gave evidence as to the questions of confidentiality and urgency. However, Mr Wilson identified no urgency except the general wish to test the accuracy of the disclosure affidavits. Ms Dixon, however, identified the need for urgency in the following terms (open affidavit, par 13): "Further, I am informed by Mr Lawrence Cohen QC, MWPs counsel in the UK, BVI, the Bahamas and NSW, and verily believe that it is necessary to use the documents for further applications that are needed from time to time in the British Virgin Islands, in particular the proposed Application to the BVI Court to appoint a Receiver over companies associated with Mr Nicholls and Mr Slater and in relation to proceedings being contemplated in Switzerland." 24 In the course of the hearing on 26 March before the primary judge, counsel for the respondent informed the Court (apparently without supporting evidence) that the application in the British Virgin Islands was to be made "in the next few days": Tcpt, 26/03/07, p 4 (25) and p 6 (45). Counsel further stated (Tcpt, p 7 (45) and p 14 (30)): "The excruciatingly urgent parameter is that there is going to be an application made in the British Virgin Islands on Wednesday their time, which is Wednesday evening our time, for the appointment of receivers to a number of companies. … The reason for the application on Wednesday is because leading counsel for the plaintiff overall, in the various jurisdictions in the world, is actually going to be in the British Virgin Islands on Wednesday." 25 The question of urgency may not have been critical, although from the phrase "excruciatingly urgent parameter", which emanated from his Honour in the first place, it is clear that his Honour was concerned about the asserted urgency. The question of confidentiality was of greater significance. That was addressed by Mr Wilson in his affidavit at par 82, in the following terms: "The need for confidentiality arises for the following reasons: (a) if finance has been provided to the Temujin Companies, Mr Slater and/or Mr Nicholls, and Incomeborts and Norgulf are controlled by Messrs Slater and Nicholls, which the evidence referred to in paragraph[s] 38 and 44 suggests that they are, should the [appellants] become aware that MWP seeks information in relation to those companies from Macquarie Bank it is highly likely that the assets controlled by those companies, being at least 15 million shares in Max Plc, currently worth £18,750,000 at £1.25 per share, will be removed from those companies; (b) if a receiver has been appointed over the assets of Norgulf and Incomeborts in the BVI, the $10m which was provided to Temujin, will still be in the hands of Temujin; and (c) if Mr Risbey and/or Mr Emmott becomes aware that MWP will be provided information that will show that each has interests other than those that they have set out in their respective Affidavits, there is a danger that the assets controlled by each of them in Switzerland will be dissipated thereby endangering the purpose of the proposed criminal complaint to the Swiss authorities referred to in paragraphs 75 to 78 above." 26 Paragraphs 38 and 44, referred to by Mr Wilson in (a) above, related attempts by Mr Slater to obtain funds in Australia to invest in the Chilisai project. Mr Wilson inferred from an exchange of emails that funding had been sought from Macquarie Bank Ltd. Mr Wilson was of the view that the transaction (if it eventuated) should have been referred to in the disclosure affidavits, which provided the reason for the subpoena to Macquarie Bank. What precisely the appellants would have done to conceal the information if the application had been made inter partes, was not entirely clear. 27 In the course of the hearing, his Honour noted that there was "a mountain of material and detail" which made it "very difficult" to provide a short judgment supporting the orders made: Tcpt, p 15(42). He sought the assistance of counsel for the respondent, asking him to provide something in "summary form" setting out "that which is said to be really proven" so as to "put before me a piece of paper which I could have marked for identification, adopt and accept as proven": Tcpt, p 15(45)-(50). It appears that that course was not ultimately taken, as there was no break in the proceedings before his Honour delivered judgment in relation to the confidential subpoena to Macquarie Bank Ltd: Tcpt, p 25. Counsel then addressed separately on orders 6 and 7 relating to the variation of the consent orders and the use of the disclosure of affidavits in other jurisdictions: Tcpt, p 26. Again, there was no break before his Honour delivered a judgment: Tcpt, p 29. (The request for assistance was repeated on a later occasion.) 28 There was no copy in the materials of either ex tempore judgment, but only a revised version, apparently completed on 5 April 2007 and provided to the respondent. That version combined brief reasons in relation to the separate orders. 29 The primary judge made orders on 26 March broadly in accordance with the orders sought in the notice of motion. Thus, the respondent was granted leave to issue a subpoena to Macquarie Bank, to be served by 7pm on Monday, 26 March and to be returnable before his Honour at 2pm on 28 March. Order 3 read: "Macquarie Bank shall not inform any person or entity that it has been served with and/or produced documents pursuant to the Subpoena referred to in order 2 above, other than for the purposes of obtaining legal advice in connection with such Subpoena." 30 The substance of the other orders was noted at [12] above. The judgment noted that it was important for the Court to "scrutinise very closely" an application to vary orders made by consent: at [20]. His Honour identified the test as whether there had been "a significant change in the circumstances" since the consent orders were made: at [21]. To that end, his Honour was satisfied that there were "a number of stark inconsistencies" between the disclosure in these proceedings and the disclosures made in the British Virgin Islands: at [22]. The discrepancies were described as "significant, indeed very significant": at [25]. The reasons indicated that this conclusion was derived from the "confidential affidavit" of Ms Dixon. No attempt was made in the reasons to identify the discrepancies. 31 On the return of the subpoena on 28 March, documents were produced by Macquarie Bank and the respondent was given access. It was also given leave to use the documents in connection with the other proceedings identified on the first motion. Confidentiality was sought to be maintained by orders that the notice of motion, the documents produced and the associate's note of the making of the orders not be shown on the Court file, but that the documents be retained in the chambers of Einstein J. The Registry was directed not to make an electronic record of the orders, the notice of motion or "any other aspect of the closed Court hearing of 28 March 2007". The orders were to be entered forthwith and the sole Registry copy of the orders was to be "directly delivered to the chambers of his Honour Justice Einstein". The fact that the regime was instituted for documents to be retained in the judge's chambers was a significant aspect of the regime to maintain confidentiality. Why it was thought necessary that a person inspecting the Court file was not to be allowed to discover even the occurrence of the ex parte hearing is unclear. 32 The matter came back before his Honour on 30 March 2007, again ex parte, at which time he was informed that the receivers had been appointed in the British Virgin Islands' proceedings. Further production by Macquarie Bank was expected on the following Tuesday and the matter was stood over until Wednesday, 4 April 2007. The expectation noted by counsel for the respondent was that on 4 April "we should be able to have orders made lifting most of the confidentiality": Tcpt, 30/03/07, p 2 (10). The regime for confidentiality noted above was continued in the orders of 30 March 2007. 33 As foreshadowed in a hearing on 5 April 2007, the next day his Honour made further orders which purported to lift the confidentiality requirements in respect of all the material which had been before the Court over the previous 10 days, with the exception of any references to the possible criminal complaint proposed to be made in Switzerland. The respondent was ordered to serve that material, in redacted form, on the solicitors for the appellants by 5pm on 5 April 2007. The original documents were ordered to be retained in the chambers of Einstein J. Copies of the documents in the form served on the appellants were also to be provided by the respondent to the Court for placing on the Court file. The order of 5 April was also to be served on the appellants on that day. That occurred. 34 On 12 April 2007 a further ex parte motion (dated 10 April 2007) came before the primary judge, pursuant to which the respondent sought the following orders: "2. To the extent necessary, the [respondent] be granted leave to: (a) make a criminal complaint to the District Attorney, Zug, Switzerland and, if criminal proceedings are commenced in that jurisdiction, to be joined as a civil party to such proceedings; (b) provide assistance to the receiver of: [the BVI companies] to furnish money laundering report to the Financial Investigation Agency in the British Virgin Islands; and (c) make a criminal complaint to the police in the United Kingdom. 3. For the purposes of making the complaints, being joined as a civil party to criminal proceedings in Switzerland and/or providing assistance as described in paragraph 2 above, the [respondent] be permitted to supply and make use of the following affidavits: (a) the Disclosure Affidavits filed by the First and Second Defendants …; and (b) documents produced on subpoena by Westpac Banking Corporation in these proceedings." 35 The confidentiality regime earlier established was sought to apply to the motion. 36 As explained in the supporting affidavit of Mr Wilson dated 10 April 2007, the proposed criminal complaint in Switzerland related to "allegations of the following criminal activities by Emmott, Risbey and others", the 'others' apparently being intended to comprehend Messrs Slater and Nicholls who were alleged to have facilitated the money laundering. The criminal activities were said to be embezzlement, money laundering, forgery and "disloyal management". Mr Wilson asserted a continuing need for confidentiality and urgency on the following bases: "29. The need for confidentiality arises, because if any of the Defendants to any of these proceedings, the UK Proceedings and the BVI Proceedings, including Risbey, Emmott, Nicholls and/or Slater or others, become aware of the proposed Criminal Complaints, there is a danger that the assets controlled by them will be dissipated thereby endangering the purpose of the proposed criminal complaints. 30. The need for urgency arises as MWP, and its advisors worldwide, are engaged in a tracing exercise in relation to assets, monies and interests which MWP allege were stolen and improperly taken by Emmott, Nicholls and Slater (and their nominees) and there is a real danger that, as more time passes, more of the assets which are in the hands of Emmott, Nicholls, Slater (and their nominees) and/or their associates and entities controlled by them, will be dissipated and unrecoverable." 37 The orders sought by the respondent were made by Einstein J on 12 April 2007, in the terms sought. 38 In the course of a hearing, which probably took place on 11 April, although the transcript is confused in respect of dates, counsel for the respondent noted that neither Mr Emmott nor Mr Risbey was a party to the New South Wales proceedings, and continued (Tcpt, p 8(25)-(45): "I mention that for the purposes of making clear that the principal direction of the criminal complaints is Mr Emmott and Risb[e]y, however, the Court ought to be aware that the complaints do also make some reference to Messrs Nicholls and Slater, so that whilst we can say that those individuals are not the focus of the complaints our client proposes to make to the authorities, I should tell your Honour that I can't guarantee what the authorities are going to do and, of course, once information is put before prosecuting authorities they can take views and they may well wish to do something with Messrs Nicholls and Slater, but as I said, they are not the focus of the complaint from our perspective, but because they form part of the factual matrix I can't guarantee that they won't be caught up in it in due course." 39 An exchange with counsel, which later drew some attention appears in the transcript at pp.13-14: "HIS HONOUR: Mr Jones, I certainly don't understand that there is a crisis about this being done this afternoon. I can see that it is important to have it finalised, but there is no receivership application tomorrow afternoon or anything like that going on now. What I would really like to do, if you don't mind, is to ask you in terms of assisting the Court from the notes that you have been taking and the matters that you have been putting forward to give me a document which sets out in the cogent manner in which you have endeavoured this afternoon to deal with it what are the suggested substantive reasons for the Court making those orders. MR JONES: Yes. HIS HONOUR: It is an important area and it is one which is slightly off the radar in many ways for many people and I wouldn't like to make orders without giving the reasons as clearly as I can. That shouldn't take you too long. MR JONES: No. … HIS HONOUR: … This is all ex parte. I will read the materials and presumably likely will grant the leave that is sought, etc, but it shouldn't be taken as read that this is a given. I think I follow everything that you have been putting. … MR JONES: There is actually a skeleton argument commencing at page 47, which Mr Cohen put before the UK court in obtaining similar orders, which is probably a more useful set of notes. HIS HONOUR: Yes, thank you. Would you be able in the document that I am asking for to weave in the analysis that you say comes forward from this Attorney General for Gibraltar v May case? … HIS HONOUR: In any event, what it amounts to I suppose is a weaving together of that which has passed and that which is now sought and the essential justice of the situation, which from my past and present experience with you I don't think you would find too difficult, but there is now an obligation on a judge hearing an ex parte application to give some reasons and I want to give some reasons which I follow fully and which will be of the necessary substance in an area which is somewhat unusual." 40 The effect of the orders, made without notice to Mr Nicholls or Mr Slater and inconsistently with the original consent orders under which the affidavits were provided, was to permit further disclosure of the affidavits to authorities in other countries, for purposes which, it appears to have been conceded, were not directed to the appellants. That concession did not sit comfortably with counsel's further statement that "at the time the disclosure affidavits were supplied to this Court, neither Mr Nicholls nor Mr Slater sought to invoke a privilege against self-incrimination": Tcpt, 11/04/07, p 10 (40). 41 In a judgment dated 12 April 2007, the primary judge accepted as "of substance" the following submissions, at [7]-[8]: "i. whilst it cannot be certain that Messrs Nicholls and Slater will not become parties to any subsequent criminal prosecutions, the Court ought to take comfort from the fact that the commencement of such proceedings would follow the responsible exercise of a prosecutor's discretion in each relevant jurisdiction; ii. it is generally in the interests of justice to ensure that activity that may have the suspicion of criminality about it be brought to the attention of relevant prosecuting authorities for their consideration." 42 His Honour continued at [19]: "The final matter of substance is the need for confidentiality. The reason for confidentiality at this stage is to facilitate the effectiveness of the prosecutor's inquiries in each jurisdiction, as well as to ensure the effectiveness of steps that may be taken by the authorities in Switzerland (in the form of disclosure and securing assets in that jurisdiction). Clearly the potential effectiveness of those steps may be placed at some jeopardy if those involved become aware of those steps being taken." 43 It may be remarked that the fair-minded observer who was aware of these matters, might well infer that his Honour was of the view that there were reasonable grounds for suspicion that colleagues of Messrs Nicholls and Slater, and perhaps Messrs Nicholls and Slater themselves, were or might be involved in criminal activities, including embezzlement, money laundering, forgery and disloyal management (whatever the latter might involve). He or she might also infer that his Honour was satisfied that, if Messrs Nicholls and Slater became aware of the complaint and the investigations, they might take steps to jeopardise the effectiveness of the possible actions taken by criminal investigating authorities in, for example, Switzerland. What those steps might be (other than disposal of unidentified assets) was not made clear. 44 The respondent was before his Honour, again ex parte, on 6 June 2007, at his Honour's request, "because of my anxiety to ensure that the Court was kept entirely informed as to the extent to which and reasons for which the existing confidentiality regime or regimes need to be continued": Tcpt, 06/06/07, p 1(30). In support of continuing the regime, counsel for the respondent provided written submissions which his Honour accepted as justifying the continuation of the regime if he were satisfied that there was "evidence to corroborate what is put in these submissions": Tcpt, p 4(35). The matter was then stood over to allow evidence to be filed, a further hearing taking place on 11 July 2007. 45 By this stage, the confidentiality regime had become self-perpetuating. On 23 April 2007 the respondent had filed what was known as a "suspicious activity report" in the British Virgin Islands. A court there had made orders imposing a confidentiality regime in similar form to that made in this jurisdiction. Solicitors in the BVI wrote to the Financial Investigation Agency there on 4 July 2007 a letter which included the following statement (par 1.3): "We are informed by Messrs Clayton Utz that the NSW Court will not order the discontinuation of the confidentiality regime if to do so would cause Messrs Clayton Utz to commit an offence in the BVI by serving the material that was relied upon in support of the application for the NSW orders on Messrs Henry Davis York, the solicitors for Mr Nicholls, Mr Slater and [the Temujin companies]." 46 A similar letter was sent by solicitors in London to the Serious Organised Crime Agency in the UK, dated 5 July 2007, seeking confirmation of the Agency's requirement that the material provided to it remained confidential. On 9 July, the Agency responded in the following terms: "With regard to the proceedings in Australia, SOCA takes the view that the same factors which mitigate [sic] against the disclosure of the Suspicious Activity report ("SAR") or the fact that the SAR was made apply equally to disclosure outside of the jurisdiction. Such a disclosure may have the effect of prejudicing any investigation which follows from the SAR and/or have a detrimental impact on the reporter. Accordingly, SOCA … suggests that the Supreme Court of New South Wales treat the SAR with the same degree of confidentiality as the High Court of England and Wales." 47 It has been assumed that there was a hearing on 11 July, but that is not entirely clear, there being no transcript for that day. However, orders were made on that day, the effect of which was to maintain the confidentiality regime and to stand the proceedings over to 28 September 2007. The transcript of the day's hearing was ordered to be subject to the same regime. Further, there was an order that the transcript be kept in the chambers of the primary judge. 48 There was a note appended to the orders in the following terms: "It is appropriate to note that absent special circumstances being shown to the Court by affidavit by the plaintiff's solicitors on 28 September 2007 the strong likelihood is that the Court will on that day make an order revoking all confidentiality orders made at the instance of the plaintiff at any time in these proceedings." 49 There appears to have been no hearing on 28 September, but the matter was back before his Honour on 11 October 2007. Counsel for the respondent opened the proceedings with the following statement: "Your Honour, the position is that what we are asking for is to remove your Honour of the burden of having the material in your chambers. What should happen is that the material ought to be placed into an envelope, put on the Court file with 'Until further order it can't be opened'." 50 In a judgment delivered on 18 October 2007, the primary judge made the orders sought. The judgment does not disclose any reason for the change in the confidentiality regime. The result was that numerous documents were to be placed in a sealed envelope on the Court file which was not to be opened until further order of the Court. The documents included four notices of motion, five orders of the Court, six affidavits, transcripts and Associate's record of proceedings taken on six or seven occasions, together with three judgments, including the one providing for the new regime, which was inaccurately identified as the judgment made on 11 October 2007, together with a handful of related documents. Two matters were noted in the judgment which were of continuing significance. First, none of the overseas authorities had sought to insist on continuing non-disclosure: [4](c). Secondly, the Swiss authorities had frozen relevant assets in Switzerland and, his Honour concluded, that "continuing confidentiality could no longer be justified on this separate basis": [6]. Whether or not his Honour's assessment of the attitude of the criminal investigating authorities in three overseas jurisdictions was correct, the conclusions his Honour reached might have raised a serious question as to why continuing confidentiality was required at all. 51 The confidentiality regime was not finally lifted (in relation to the criminal complaints) until 13 June 2008. The circumstances in which that occurred will be addressed below. (c) disqualification applications 52 It remains to consider the applications by the appellants for his Honour to disqualify himself. The first recusal motion was made on 12 May 2008. The grounds of the application, based on the ex parte application and judgment of 26 March 2007, were set out in a letter to the respondent's solicitors dated 9 May 2008. A letter in reply of the same date noted, among other things, that the Court "made orders in relation to the confidentiality of the application and ancillary documentation in order not to undermine the Freezing Orders". That was not strictly correct; no reference was made to the continuing confidentiality regime. 53 The transcript of 12 May 2008 records the submissions on the recusal application, and indicates that there was a judgment delivered. However, on the appeal, it was agreed between the parties that there was no judgment and that his Honour merely indicated his decision, which was to reject the application. His Honour then proceeded to hear other interlocutory applications and delivered a judgment on 23 May 2008. That judgment ([2008] NSWSC 501) did not address the recusal application. 54 Following his Honour's determination of the application, senior counsel for the appellants sought access to the unredacted transcript of 26 March 2006 and the reasons for judgment. Counsel for the respondent indicated that he would need to get instructions as to whether that was opposed. The following exchange then took place between Mr Lindsay SC (for the appellants) and his Honour (Tcpt, 12.05.08, p 8 (20-30)): "MR LINDSAY: I do no more than to draw to your Honour's attention one of the implications arising from your Honour's decision, which I accept has been made. One of the implications of that is that your Honour has access to material about the case that we don't and therefore we are not able really to understand fully what material your Honour does or does not have. HIS HONOUR: Are you suggesting that I have some material in my chambers which [is] being secreted at the moment or some such thing? MR LINDSAY: Your Honour, I am not endeavouring to make any … HIS HONOUR: Well, I just don't quite follow that [what?] you are suggesting. Are you suggesting that I have been the person who has from time to time on ex parte applications been furnished with information and that is information which your clients still do not have?" 55 The suggestion that material had been supplied on the ex parte applications which had not been provided to the appellants was correct. His Honour's response was perhaps unfortunate: it had not been suggested that he was secreting material in his chambers, but it was nevertheless true that, pursuant to the confidentiality regime, material had been held in his chambers for some months, rather than in the Registry. 56 Shortly after that hearing, a solicitor acting for the appellants inspected the Court file and discovered that there had been ex parte hearings on 10 April, 6 June and 11 October 2007, of which the appellants had never been informed. He further identified ex parte judgments dated 12 April, 11 October and 18 October 2007, copies of which, he asserted, had never been served on the appellants. Supported by an affidavit to that effect, the appellants applied to the List Judge on 6 June 2008 for access to documents held on the Court file in an envelope sealed and marked "Confidential and not to be opened pending further order of the Court": Tcpt, 06/06/08, p 16(35). The motion was stood over until 13 June 2008, on which occasion orders granting access were made by consent, although subject to certain qualifications which are not presently relevant. 57 The second recusal application was made on 4 June 2009. The submissions of 4 June 2009 included matters which were raised before this Court, and relied, in part, upon the fact that "the questions to be determined at trial will include questions about the bona fides of the [respondent's] ex parte applications to the judge and whether the [respondent], in making those applications, deliberately [misled] the Judge": submissions, par 4. That statement, no doubt somewhat elliptically, foreshadowed not only the claim that the proceedings were an abuse of process (raised by a motion of which notice was given on 10 July 2009) but also the extensive cross-examination of Mr Wilson on the basis of the material that had been put before the primary judge in the course of the ex parte applications. 58 His Honour rejected the appellants' application in an ex tempore judgment delivered on 4 June 2009: Michael Wilson & Partners Ltd v Nicholls [2009] NSWSC 505. After noting the relevant principles, and noting that each of the matters relied upon was an interlocutory decision determined by him, he proceeded to address the issues raised, by reference to the paragraphs of the appellants' outline of submissions. Paragraph 3 thereof set out in paragraphs (a)-(f) matters which were clearly cumulative in effect. Paragraph (a) identified the various applications before his Honour in 2007 in sub-paragraphs, (i)-(iv). His Honour dealt with them seriatim, in effect treating each element as a separate "ground" and dismissing it as of "no substance". 59 Sub-par 3(a) identified the seven occasions on which the judge had entertained ex parte applications in closed court, had delivered three confidential judgments and had made confidential orders which, it was asserted at 3.a.iii, were designed: "(A) To expose the [appellants] to a criminal investigation overseas, which the [respondent] proposed to institute by way of a complaint to authorities in Switzerland, in aid of the [respondent's] international pursuit of 'discovery' for the purpose of these proceedings; and (B) to impose upon the [appellants] an obligation to pay the costs of transcript of 'confidential' proceedings as part of the ordinary costs in the proceedings": (Tcpt, 10/04/2007, p 16). 60 His Honour dealt with the complaints in sub-paragraphs (i) and (ii) in the following manner: "[23] As to the matter referred to in a 3a[i] [which is conveniently treated with together with 3a[ii]], there is no substance in the complaint that the Court entertained ex parte applications by the [respondent] in closed Court on a number of occasions. This is the nature of the judicial process. The applications were for freezing orders across a number of jurisdictions. On each occasion reasons for giving the ex parte relief were given and to some extent these are identified in the [appellants'] outline at 3a[ii]. The confidentiality orders were deemed necessary on the evidence. [24] As to the matter referred to in 3a[iii], the orders are self-explanatory and again on each occasion, reasons were given for ex parte orders. To the extent that the orders were ex parte the Court was satisfied that the [respondent] was entitled at that time and in those circumstances to have the orders which were made, made. The costs complaint is of no substance." 61 The costs complaint may be left to one side. In relation to the other material, the response given by the primary judge was, in effect, that the orders were in themselves entirely appropriate. That answer, with respect, missed the point, which was whether these circumstances (in combination with others) might have led the fair-minded lay observer to apprehend prejudgment which might affect the hearing which was yet to occur. 62 The events referred to in 3.a.iv involved the exchange which occurred during the hearing on 10 (or 11) April 2007 and set out at [39] above. Again his Honour said there was "no substance in the complaint": at [25]. He described the document sought as a "more detailed submission". However, the remarks in the transcript are in a form which might have suggested to a lay observer that his Honour was seeking assistance in providing adequate reasons to justify the orders which he expected to make. 63 In the statement of grounds, at paragraph 3.b.i and ii, the appellants had noted that the orders were predicated upon acceptance by the judge of matters asserted by Mr Wilson and upon – "(ii) findings that conduct of the [appellants] was 'suspicious' and that they could not be trusted: (A) to respect orders of the Court as to the maintenance of confidentiality; (B) to co-operate with police investigations; or (C) not to dissipate assets." 64 His Honour referred to these matters as being of "no substance". He continued at [26]: "These were interlocutory orders based upon the evidence put before the Court and in each case reasons were given. Each of the relevant occasions involved an ex parte exercise of the appropriate approach to determining the strength or weakness of a particular case and where the balance of convenience lay." 65 As explained at [40] above, the purposes of the orders sought in the notice of motion dated 10 April 2007 were, as his Honour acknowledged, unusual. Not only were the orders (permitting use of the disclosure affidavits for the purpose of criminal complaints) unusual, but the circumstances in which the orders were made were unusual. A freezing order which is made ex parte and takes effect immediately will usually involve notice being given to the affected party within a day or two, so that the party may have an opportunity to challenge the order, being aware of all the material that had been before the judge when the order was made. No doubt it is true to say that the order is made on the basis that there is a real risk of dissipation of property if the affected party were to be given advance warning of the proposed order. However, the assumption is of no great consequence in circumstances where the order can readily be undone without lasting prejudice and where the affected party has an opportunity to seek that step. The orders sought in April 2007, once made, were not readily to be undone, might well give rise to lasting prejudice and, in relation to the orders not disclosed on 5 April 2007, the affected parties were given no opportunity to seek relief of any kind until more than a year later. 66 None of these factors was addressed in the judgment of 4 June 2009: at the very least, that judgment would have failed to diminish any concerns that the lay observer might have had arising from the earlier proceedings of April 2007. It is probable that the manner in which this complaint was dealt with might have confirmed pre-existing fears that his Honour might not approach the substantive issues with a mind free from prejudgment. 67 Ground 3.c and 3.d were dealt with by his Honour together and need to be set out in full: "c. Not only did the judge not disclose the 'confidential' proceedings to the [appellants] on 12 May 2008 (when an opportunity for him to do so naturally arose), he made observations in the course of argument on that date which, to a fair-minded observer in light of events that subsequently occurred, suggests that he unduly identified his role with the interests of the [respondent]. See transcript (12 May 2008, pages 8 (line 15) – 10 (line 2). d. Only after Bergin J made orders on 13 June 2008 granting to legal representatives of the [appellants] access to the Court File (including 'Confidential' material on the File) was there a disclosure to the [appellants] of the nature and extent of the Judge's private dealings with the [respondent]." 68 Extracts from the transcript of 12 May 2008, at the pages identified in ground 3.c, have been set out above at [54]. This transcript included his Honour's question to Mr Lindsay as to whether he was suggesting that he (Einstein J) had "some material in my chambers" which was being "secreted at the moment". By the stage of the hearing on 4 June 2009, it was known to all parties that the material had, perhaps unusually, been held in his Honour's chambers and not in the Court Registry, for a period of months. Otherwise, his Honour's comments on 12 May were directed to counsel for the respondent and, at least implicitly, suggested that he should seek instructions which would permit the revocation of the existing confidentiality regime. That material did not suggest his Honour unduly identified his role with the interests of the respondent, but it was, perhaps, an opportunity for his Honour to explain what was implicit, namely that he was concerned at the ongoing confidentiality regime, which had (by May 2008) been in place for over a year. 69 All that his Honour said in respect to these matters in his judgment of 4 June 2009 was, at [27]: "As I made clear to Mr Lindsay SC when speaking to his outline, I had considerable difficulty following exactly what the suggested facts were in relation to the matters referred to in 3c and 3d. If and when orders were made permitting access to previously restricted material they were no doubt acted upon." 70 In the course of submissions on 4 June 2009, Mr Lindsay SC referred to par 3.c and the transcript of 12 May 2008 and noted (Tcpt, p 6 (10)): "… [a]n exchange between Bench and Bar took place in which following upon the delivery of the judgment, I indicated that it was apparent that there were matters of communications between the plaintiff and your Honour to which the defendants were not privy. And your Honour asked me whether I was suggesting that you had some undisclosed documents in your chambers and I said, as I had to say, that I was not in a position to advance any such proposition because we couldn't know. As it happens, after the passage of some time, on 13 June 2008 the then List Judge made orders granting the [appellants'] legal representatives access to the Court file including confidential material, and that disclosed that there were documents which were in your Honour's chambers as a result of the confidential orders that were made. In our submissions, this is a factor which goes again to the question of reasonable apprehension of bias. It wasn't until after the orders made by Bergin J on 13 June 2008 that the [appellants] became aware of the nature and extent of the private proceedings initiated by the [respondent] before your Honour." 71 Ground 3.d may be understood as identifying the time at which a critical element in the removal of the confidentiality regime was achieved. The transcript indicates a concern on his Honour's part that there was some implicit criticism of his conduct, arising from the fact that the orders were made by Bergin J. However, the nub of the complaint came in paragraph 3.c. In that regard, the following exchange had taken place in the course of the hearing on 4 June 2009 (Tcpt, p 8 (10)-(40): "HIS HONOUR: Now where was that Court file? LINDSAY: Part of it – according to the orders that your Honour made, the confidential orders you made – was to be kept off the Court file and in your Honour's chambers. HIS HONOUR: But I mean that did occur, there's no doubt that at some stages I did direct that the sensitivity of the matter was such that it [should] not yet go on to the usual system but at some stage – and I can't recall exactly when – I also opened the whole of the materials which could be disclosed to the [appellants] and I'm having very great difficulty in following the strength or fact that you've been putting forward when you have in your … LINDSAY: Those matters were not disclosed to us on 12 May 2008, nobody disclosed those matters to us and the evidence put before Bergin J on 5 June was that the [appellants] had no knowledge of the various matters of 2007 … . HIS HONOUR: Well as I say, I'm having real difficulty in following the precise chronology but the materials which, as far as I can recall it, were appropriate for the defendants to have – ultimately all materials as I think I recall – certainly came forward at some date and when you are referring to Bergin J making certain orders and then coupling that with some suggestions that the materials were not yet on the court file, I'm just having very great difficulty in understanding that." 72 That his Honour had no clear recollection of what had occurred, in part, in 2007 and in part a year before the hearing then in progress, namely in May 2008, was unremarkable. However, there were three aspects of the hearing on 4 June 2009 which could have given rise to concern in the mind of a lay observer. First, in respect of a matter which his Honour appeared to appreciate could give rise to concern, and about which he had no sufficient recollection, he simply recorded the fact of his confusion in an ex tempore judgment without, it would appear, seeking to refresh his memory as to the circumstances. Secondly, and consequentially, he forwent an opportunity to explain publicly what had given rise to his question about any allegation of secreting documents in his chambers. Thirdly, apparently in the belief that relevant material had been disclosed at an earlier point in time, he forwent an opportunity to explain why the confidentiality regime had been allowed to remain in place until June 2008, in circumstances where the transcript of 12 May 2008 suggested that he was conscious of its continued operation at that time. 73 Ground 3.e relied upon the respondent's conduct in opposing the recusal application of 12 May 2008, combined with its failure to disclose the nature and extent of the ex parte hearings as showing that it had acted in a manner which suggested that the primary judge was its "Judge of choice". That raised a question as to the proper role for a party on the other side of the record from the party making the recusal application. The non-applicant party has no interest in which judge sits on proceedings. However, depending on the circumstances and timing, a successful recusal application may delay proceedings, or, where the application is made during the course of proceedings, result in increased expense and other detriments, flowing from the need to reconstitute the court and recommence the hearing. While there can be no general rule, there are circumstances in which it is inappropriate for the non-applicant to make submissions and other circumstances where, if submissions are made, care should be taken to ensure that they do no go beyond appropriate clarification of the facts and the law. It was not suggested in this case that the submissions were inappropriate and that factor can be put to one side. (At the hearing on 4 June 2009, the respondent neither consented to nor opposed the recusal application and made no submissions.) 74 A further ground, 3.f, related to findings made on 23 May 2008: his Honour's rejection of that ground was orthodox and need not be referred to further. 75 A third recusal application was made, somewhat obliquely, on 15 June 2009 at the commencement of the final hearing. Nothing new was raised at that time and it was not expressly dealt with by the primary judge by way of a further ruling. Nothing more need be said in relation to that application. (d) waiver 76 Before considering the application of relevant principles to the circumstances set out above, it is convenient to address a somewhat belated submission by the respondent that the appellants could not be heard to complain about any apprehension of bias based on circumstances preceding the trial, because, having made an unsuccessful recusal application, they took no steps to have the matter reviewed in this Court. That, it was submitted, constituted a waiver of any ongoing entitlement to challenge the final judgment on that basis. 77 No authority was drawn to the Court's attention to support the submission that failure to take an interlocutory appeal could constitute waiver. There are a number of powerful reasons for rejecting the submission. First, it is clear that there was no express waiver and that, accordingly, any waiver must be implied. Secondly, the kind of situation in which waiver may be implied is where a litigant "who is aware of the circumstances constituting a ground for such objection fails to object": Smits v Roach [2006] HCA 36; 227 CLR 423 at [43] (Gleeson CJ, Heydon and Crennan JJ). In a case where recusal applications were made on two occasions in a timely fashion (indeed the first may have been premature) and reiterated at the opening of the hearing (Tcpt, 15/06/09, p 37(15)), it is impossible to say that the appellants stood by until the contents of the final judgment were known and then, on finding them unpalatable, complained of apprehended bias: cf Vakauta v Kelly, at 572 (Brennan, Deane and Gaudron JJ). Thirdly, dismissal of the recusal application did not constitute a judgment or order from which an appeal lay: Lee v Cha [2008] NSWCA 13 at [2] (Hodgson JA), [13]-[25] (in my judgment, Bell JA agreeing). Fourthly, there was no suggestion that prohibition lay against a judge in the Equity Division: Lee v Cha at [2]. Fifthly, even if there were a right of appeal, perhaps because his Honour could have been asked to rule upon an interlocutory matter requiring determination, permitting, in effect, a collateral challenge to the dismissal of the recusal application, the appellants would nevertheless have required leave. Whether this Court would have favoured such a course at a point where the trial was about to begin may be doubted. As noted in Lee at [36] and [37], the Court will generally exercise restraint and not interfere in proceedings at an interlocutory stage unless there is some clear reason to do so, sufficient to outweigh "the undesirability of discontinuity, disruption or delay" in the orderly hearing of a claim. 78 The suggestion that any implied waiver precluded agitation of the ground of apprehended bias must be rejected. (e) application of principles 79 In dealing with the particular circumstances set out above, the following factors are relevant: (a) each ruling was made on an interlocutory application and involved no final findings of fact; (b) there was a significant lapse of time between the orders (which were made between 26 March 2007 and 12 October 2007) and the commencement of the trial on 15 June 2009; (c) some, though not all, of the orders and the supporting materials were supplied to the appellants shortly after the orders were made, namely on 5 April 2007; (d) there is no material in the judgments made on the ex parte applications which would provide unequivocal support for a reasonable apprehension of prejudgment, and (e) in so far as the matters of concern arising from the interlocutory proceedings may have been thought to affect his Honour's assessment of the abuse of process contention, that issue was not raised until some four weeks after the commencement of the trial. 80 Each of the matters set out in the last paragraph were relied on by the respondent in resisting the challenge on the appeal. However, there were countervailing considerations arising from the following factors, which might have led an observer to apprehend the possibility of prejudgment: (e) the material placed before the primary judge was not entirely supportive of the orders made; (f) some of the orders were, in their nature, contestable; (g) neither the transcripts nor the various ex parte judgments revealed full and proper disclosure and consideration of the weaknesses of the applications; (h) it might be thought that the confidentiality regime was maintained beyond a justifiable period; (i) the primary judge acted on a basis as to the credibility and possible criminality of the individual appellants, which they had no opportunity to rebut, and (j) the judge made orders on the basis of material put on through the affidavits of Mr Wilson, which he accepted for the purposes of the interlocutory applications, a factor which could have caused him embarrassment when invited to make adverse credit findings against Mr Wilson at the trial. 81 The respondent contended that the question of reasonable apprehension of bias needed to be assessed against knowledge of the issues which were known at the time of the recusal applications. However, that approach appears to have treated the challenge as, in effect, an appeal against the refusal of the trial judge to recuse himself. As a matter of form, that was not so: the challenge was to the final judgment and orders. Even if the matter had arisen as an appeal from an interlocutory judgment, the appeal being by way of rehearing, it would be open to this Court to receive evidence as to what had happened after the recusal decision. 82 Taking a broader approach, the appellants contended that the consequences of the ex parte interlocutory hearings could be seen in the reasons for judgment, resulting in the final orders, in the course of which his Honour demonstrated a mind which had been, at least subconsciously, influenced to accept the "case theory" presented by Mr Wilson in his affidavits during the interlocutory proceedings. Extensive cross-examination of Mr Wilson appeared not to have affected his Honour's views. That, it was contended, was not the result of a careful assessment of Mr Wilson's evidence, but was the result of simply ignoring aspects of his cross-examination which were adverse to his credit. The appellants relied upon a series of matters, which they had contended before the trial judge reflected adversely on Mr Wilson's credit, but which were not addressed in his judgment. 83 The respondent is entirely correct to say that the making of an interlocutory order does not, of itself, preclude the judge from sitting on the trial in the same matter. Certainly that is so where interlocutory orders are made inter partes and it cannot be said that there has been communication between one party and the judge in the absence of the other party or parties. Further, an interlocutory order will not usually require a judge to determine any matter on a final basis. For example, a finding that there is a serious issue to be tried, will not generally prejudice an independent and unbiased assessment of the plaintiff's case once all the evidence is presented. 84 An interlocutory order made ex parte, that is in the absence of one party, gives rise to different concerns. As explained at [65], those concerns will be mitigated where an opportunity is afforded promptly following the ex parte hearing which will allow the other party to present its views in respect of the interlocutory order. 85 Although, in dismissing the recusal application in June 2009, his Honour treated the matter as of no significance, the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern. It is quite possible in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure. Particularly may that be so where the material presented is voluminous, the whole history of the relationships between the parties is explored, at least to some extent, and where the material is supplied and the hearings take place over a period of more than six months. 86 Against this consideration it is necessary to balance the respondent's contention that the relevant period of the ex parte hearings (from March to October 2007) concluded some 20 months before the first day of the trial. That is no doubt a factor which the fair-minded observer would take into account. On the other hand, the impressions of the observer would also be affected by the refusal of the recusal application on 23 May 2008 (without giving reasons) and the further refusal on 4 June 2009, which was accompanied by reasons which, in some respects, might have failed to allay any existing concern and may indeed have exacerbated some concerns. 87 The other countervailing considerations have been summarised at [80] above. The remaining matter for consideration is the reliance by the appellants on the terms of the final judgments of the primary judge. For reasons which will be noted shortly, these matters may be dealt with in summary form. 88 First, and perhaps most starkly, the primary judge failed to address 11 separate matters which were put to his Honour as supporting adverse findings on credit, in relation to Mr Wilson's evidence. The fact that they were simply not addressed may be thought to have revealed a conscious or subconscious reluctance to consider the possibility that the evidence on which the interlocutory orders had been made might not have withstood proper scrutiny. 89 Secondly, it was submitted that the primary judge had simply adopted the broad-brush approach to liability proffered by the respondent in its submissions, without addressing the need to make specific factual findings in order to support the conclusions with respect to liability and the appropriate relief. 90 Thirdly, whilst referring to and apparently accepting in full the evidence of Messrs Sinclair and Schoonbrood, his Honour paid no attention to the possible consequences of their evidence in relation to the relief granted. Had he done so, he would have had to consider the extent to which the respondent would have continued to obtain instructions from them in relation to their projects after the departure of Messrs Nicholls and Slater and, in June 2006, Mr Emmott. The respondent contended that such consideration was not necessary, on its theory of the case, but that is to miss the point: what his Honour failed to do was to address, in a serious and realistic manner, the contrary submissions put on behalf of the appellants. 91 These considerations may give rise to one or more of three findings: first, it might be thought that they demonstrate not merely an apprehension of bias by way of prejudgment, but the crystallisation of that apprehension in a demonstration of actual prejudgment. However, the appellants did not put their case expressly on that basis and it is not appropriate to consider it further. The alternative basis, on which the appellants did rely, was that this material confirmed in a practical fashion the reasonableness of the apprehension of bias otherwise created by the pre-trial events. Thirdly, it may be said that these aspects of the judgment would have prevented any diminution in the apprehension which the lay observer might otherwise have felt and which might have been laid to rest by persuasive reasoning, inconsistent with the apprehension. 92 For reasons which are identified in the course of considering the substantive challenges to his Honour's findings and orders, there is substance in each of the complaints made in relation to the judgments. It is sufficient to accept that the final reasons did not remove the pre-existing apprehension of bias, as being unfounded. (f) conclusions as to bias 93 In the particular circumstances of the case, the challenge to his Honour's judgment based on a reasonable apprehension of bias, as assessed by this Court, must be upheld. The critical factors which support that conclusion include the following: (a) the number of ex parte applications made to the primary judge in 2007; (b) the unusual nature of those applications; (c) the absence of an opportunity for the appellants to challenge the orders made ex parte; (d) the absence of consideration in the judgments of the existence of the power, and the appropriateness of its use, to make orders in aid of criminal complaints in foreign jurisdictions; (e) the absence of consideration of the power of the Court, on an ex parte hearing, to vary orders made by consent, pursuant to an agreement between the parties, thus unilaterally and without hearing from the affected party varying the orders which resulted from the agreement; (f) the circumstances in which, and the period over which, confidentiality was maintained in respect of the orders permitting use of the disclosure affidavits in support of the criminal complaints; (g) the fact that the primary judge appeared to have formed at least a tentative view that the individual appellants had conducted themselves in a manner giving rise to a reasonable suspicion that they were involved in criminal activities, without permitting them an opportunity to present material to the contrary; (h) forming the view last referred to on the basis of evidence of Mr Wilson in circumstances where Mr Wilson's credit was likely to be a significant issue at the trial; (i) the absence of persuasive reasons in the judgment on the recusal application, tending to remove the basis of the apprehension of bias, and (k) the remarks at the hearing on 28 May 2008 in respect of secreting documents in chambers. 94 These factors are addressed more particularly at [20], [22], [26], [31], [43], [50], [55], [62]-[72] and [88]-[91] above. The cumulative effect of these considerations leads to the conclusion that a fair-minded lay observer, apprised of the facts, might well apprehend that the primary judge might not be able to bring an open mind to the issues raised in the trial, and particularly an assessment of the credibility of Mr Wilson on the one hand and Messrs Nicholls and Slater on the other. I would hold that view and do not see any reason to think that the fair-minded lay observer would not share that view. Finally, the judgments given by the primary judge following the trial tend to enhance, rather than diminish, the apprehension that would otherwise arise. 95 In these circumstances, there is no alternative to upholding the appeal and setting aside the judgments and the declarations and orders made by the primary judge. The remaining question concerns the appropriateness of a retrial. Abuse of process 96 The appellants contended that, if the Court were of the view that the judgments and orders below should be set aside, the respondent's proceeding should be dismissed as an abuse of process, rather than being remitted for a retrial. 97 The appellants' case in this regard, generically labelled "abuse of process" relied, in grounds of appeal 2 and 22, upon: (a) the absence of connection between the respondent and the subject matter of its claims, and New South Wales; (b) the close connection between the respondent and the conduct on which the claims were based, and Kazakhstan, and (c) the relationship between the claims and the London arbitration involving the respondent and Mr Emmott. 98 It is true that the respondent is a company incorporated in the British Virgin Islands which appears to have operated (at the time of the matters giving rise to the litigation) primarily in Kazakhstan and to have had no place of business in Australia. On the other hand, the individual appellants, who controlled the corporate appellants, appear to have been Australian citizens and residents at the time the proceedings were commenced. Although it was said that the respondent had so structured itself and presented its case as to make it impossible, in practice, to enforce any adverse order against it, there are procedural mechanisms for avoiding prejudice to local defendants sued by a foreign corporation and those factors do not demonstrate that the foreign corporation should not have been allowed to pursue the appellants in this jurisdiction. 99 The question with respect to the London arbitration is more complex. As Lindgren AJA has demonstrated, the respondent sued on numerous causes of action, some of which were entirely independent of misconduct on the part of Mr Emmott. However, it is not clear, if properly considered, what findings could be made to support each of those causes of action; nor is it clear what relief would flow if they were upheld. On the other hand, an important part of the respondent's case, and perhaps the only basis on which it could maintain the full extent of its claims for relief, depended upon an allegation that the appellants had accessorial liability in respect of breaches of fiduciary obligations owed by Mr Emmott to the respondent. 100 Before the primary judge, the appellants argued that the trial should be postponed until the conclusion of the London arbitration. That proposal was based on the premise that the London arbitration would authoritatively determine the extent of Mr Emmott's breach of fiduciary obligations. That course was not accepted by his Honour, and in fact judgment was delivered before the award of the arbitrators was handed down in London. That award became available between the judgment below and the hearing of the appeal. The award was tendered as further evidence on the appeal. For reasons given by Lindgren AJA, the tender should be accepted, as should the additional documents tendered by the respondent in the event that the award were admitted in evidence. 101 The situation now revealed by the further evidence is that Mr Emmott was found liable to the respondent for breach of fiduciary obligations, but limited to particular transactions. In other respects, he was exonerated. Some of the transactions with respect to which he was exonerated were matters in respect of which the primary judge upheld the respondent's claims of breach by Mr Emmott of his fiduciary obligations and, consequentially, claims against the appellants for accessorial liability for the losses incurred were also upheld. 102 Although the manner in which his Honour dealt with these issues was a ground of challenge on the appeal, there is no need to address that aspect of the matter. It is, however, necessary to consider the significance of the London arbitration award in relation to the orders which should now be made. The existence of the award does not provide a ground for refusing to order a retrial. However, if the appellants are correct and the respondent should not be permitted to assert a fiduciary liability on the part of Mr Emmott inconsistently with the findings of the arbitral tribunal, it is arguable that any rehearing should be postponed until the arbitration in London has been finalised. In that respect, the further evidence reveals that there is an appeal from the award brought by the respondent in the High Court in London. That argument should be accepted if the underlying premise (namely that the respondent should not be allowed to depart from the findings of the arbitral tribunal) is correct and if appropriate interlocutory orders can be made on a continuing basis. 103 It is not in dispute that the determination of the arbitrators in London was capable of giving rise to an estoppel between the parties to that arbitration. Thus, as between Mr Emmott and the respondent, the arbitration determined the extent to which, in respect of particular transactions, Mr Emmott was liable to the respondent for breach of fiduciary obligations owed to it: see KR Handley, Spencer, Bower and Handley; Res Judicata (4th ed, 2009) at [1.08-1.09], noting that an estoppel created by an award constituted a substantive right: see Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] 1 WLR 1041 (PC); see also Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190, in relation to determinations of a referee under the Building and Construction Industry Security of Payment Act 1999 (NSW). 104 To the extent that the respondent was unsuccessful in the arbitration, it should not be able to pursue against the appellants claims based upon those aspects of Mr Emmott's liability. Such a course would constitute a collateral challenge to the findings of the arbitrators and an abuse of process, within the principle articulated in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198. As explained by Handley JA (with whom Mason P and Heydon JA agreed) a purchaser who had failed in proceedings against the vendors of property to establish reliance on erroneous figures identified in the contract of sale should not be permitted to assert such reliance, in later proceedings against the accountants who had prepared the figures. As Handley JA noted, the accountants had not sought to strike out the action against them on the basis that they should have been joined in the earlier proceedings (see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589) although such a claim may have been open to them: Rippon at [23]-[24]. Further, it was true that the issues of duty and breach on the part of the accountants had not arisen in the earlier proceedings: at [27]. Nevertheless, although there were additional and new issues, the purchaser could not succeed without establishing reliance on the figures and to do that the purchaser needed to relitigate an issue which had been determined against it in the earlier proceedings: at [28]. As Handley JA further explained, there was "no question here of oppression and unfairness because the accountants were not parties to the earlier action, but these proceedings [did] threaten the integrity of the administration of justice and [raised] the prospect of conflicting judgments": at [36]. Accordingly, the fresh proceedings were struck out. 105 To the extent that the respondent presently seeks to pursue claims against the appellants based upon a liability of Mr Emmott which has been rejected by the arbitrators in London, it should not be entitled to pursue those claims here against the appellants. 106 The necessary steps could be taken at this stage to remove the offending claims from the present pleadings, but, as a practical matter, it is preferable to allow the appeal process presently on foot in London to be completed before that step is required to be taken. 107 The appellants relied upon one other aspect of the award as a foundation for an order that the claims be struck out. That depended upon the conclusion of the arbitrators that amounts due by Mr Emmott to the respondent should be set off against debts due from the respondent to Mr Emmott. To the extent that the claims against the appellants related to the same loss as might be recovered from Mr Emmott, and to the extent to which his liability had been extinguished by the relevant set-offs, it was contended that the respondent had suffered no present loss as a result of those breaches of duty. 108 If that were correct, it would result only in some further aspects of the claims being removed from the proceedings, not the striking out of the proceedings as a whole. The possibility that the respondent suffered losses as a result of the conduct of the appellants, otherwise than as a result of accessorial liability for the misconduct of Mr Emmott, remains a matter which the respondent is entitled to pursue in this Court. Further, the extent to which, as a matter of fact, the losses suffered by the respondent had been satisfied, remained an issue which would need to be determined. It was not a matter proved on the appeal and was not self-evidently correct. At least in part, that is because the arbitrators divided the issues of liability and quantum, so that it was not required to address in the award delivered in February 2010, the consequences of its orders for setting off the respective debts. 109 There remains a question as to whether the delay likely to be caused by any order that the retrial should await the completion of proceedings in the UK would cause undue prejudice to any party. That was not suggested by the parties in the course of the appeal, but, given the findings of this Court, the parties should have a further opportunity to address that question if they so wish. To that end, any application for variation of the orders proposed below should be made by notice of motion filed and served within 14 days of the delivery of this judgment. In considering such matters, the parties should assume that any matter concerning the continuation or variation of the interlocutory regime in place prior to the hearing of the appeal may properly be dealt with by a judge in the Equity Division, where the matter will lie until finally determined. Conclusions 110 For these reasons, the appeal must be allowed and the declarations and orders made by the primary judge set aside. 111 I agree with the reasons of Young JA in respect of the difficulties arising from the form of the declarations and orders. Those were matter which would have required the intervention of this Court, had it not been necessary to set aside the declarations and orders for the reasons given above. I also agree with the reasons of Lindgren AJA in relation to the grounds of appeal challenging the approach of the primary judge as to the applicable law. 112 Further, as explained by Lindgren AJA, the cross-appeal must, consequentially, be dismissed. 113 In addition to orders (1) and (2) proposed by Lindgren AJA, with respect to the further evidence, the Court should make the following orders: (3) Allow the appeal from the judgments in the Equity Division delivered on 6 October 2009 and 11 December 2009 and set aside the declarations and orders 1-33 made on 11 December 2009. (4) Direct that there be a further hearing of the proceedings in the Equity Division, but that the trial not commence until the determination of the appeal against the second interim award of the Arbitral Tribunal made on 22 February 2010 in London or, if the appeal is upheld and the Tribunal required to reconsider its reasons in any respect, until the redetermination has been made. (5) Dismiss the cross-appeal. (6) Order that the respondent pay the appellants' costs, including reserved costs, in this Court. (7) The costs incurred to date in the Equity Division are to abide the outcome of the further hearing in the Division and are to be determined by the judge conducting the further hearing. 114 YOUNG JA: This is an appeal and cross appeal from a decision of Einstein J in the Commercial List of the Equity Division of this Court in a dispute respecting a legal service organisation based in Kazakhstan operated by the respondent (MWP). 115 The facts and circumstances have been well set out in the reasons of Lindgren AJA which I have read in draft and there is no need for me to repeat them. 116 I have read in draft what Lindgren AJA has to say about choice of law: I agree. 117 I have also read in draft the reasons of Basten JA with respect to the question as to whether the primary judge ought to have recused. 118 Again, because the detailed analysis of the facts and the applicable principles of law on this aspect of the appeal are so well set out by his Honour, it is unnecessary for me to repeat them. 119 I agree with his Honour's conclusions and it seems to me that one can check the validity of those conclusions very simply. 120 I agree with the proposition that merely because a judge conducts pre-trial conferences or hears interlocutory motions in proceedings does not mean that he or she must recuse. However, if that judge has seen material which could have relevance in the case which has been withheld from one of the litigants, and a fortiori if that judge makes a series of interlocutory orders ex parte which can only be justified on the basis of accepting the truth of statements made by one of the parties whose credit is to be in issue, that judge must almost always not allow himself or herself to preside at the trial. 121 It should not be necessary to explain the reason for this, but I do so as the primary judge seemed to be genuinely confused when this proposition, or something like it, was put to him. A fair-minded lay observer would conclude that a judge who had been satisfied that the orders made in interlocutory proceedings were correct, more likely than not had already accepted the proposition that the evidence on which the orders were made was truthful and credible and so has already made a firm decision on the vital question of whose evidence was to be accepted. 122 Indeed it may go further, and, I suspect that it did so in this case, that by reason of continually accepting the evidence of one side (some of which he has agreed is not to be disclosed to the other side), the judge has put himself into the mindset of accepting that that witness is the "good guy" and thus the opponent is otherwise. 123 In the present case this mindset was assisted by continued suggestions that, even if Messrs Nicholls and Slater were not themselves international financial criminals being investigated by fraud squads in various parts of the world, they were close associates of them, whereas the plaintiff's side was pure and honourable. 124 I should make two other comments. 125 First it was suggested that there is a strategy, allegedly invented by an English silk, of informing fraud squads in a series of countries concurrently of the plaintiff's allegations and/or of commencing proceedings in respect of them. The intended consequences are that provided one country's court or fraud squad takes the allegations seriously (and the odds favour this happening), all the other courts can be influenced in the plaintiff's favour, the defendants are caused great expense and inconvenience by fighting a battle on many fronts at once and it is almost certain that, in accordance with their natural inclinations, at least one fraud squad will issue a ukase to the effect that confidentiality is required. 126 In some States of the USA this type of tactic has led to dismissal of proceedings under a development of the Unclean Hands doctrine; see eg Blain v The Doctor's Co 272 Cal Rptr 250 at 258-9 (Cal Ct App 1990). In Australia, employment of it may lead to serious disciplinary proceedings against the lawyers involved. 127 The second comment is that although in most cases a lot of time can be saved by the one judge holding pre-trial conferences and presiding at the trial, particularly if this process has continued over many months, if it emerges that a fair-minded observer would be of the view that that judge should not conduct the trial, the judge must recuse, and the inconvenience and extra costs involved are insufficient reasons against such a course, AWG Group Ltd v Morrison [2006] 1 WLR 1163. 128 Because the case has to be remitted for retrial before a fresh judge, it would be inappropriate to make detailed rulings on questions of fact raised in the notices of appeal and cross appeal and I will not do so. 129 I thus only need to consider the matters raised as to the relief given by the primary judge and associated topics. 130 The primary judge made orders against each of the appellants in virtually identical form. I will set out those against Mr Nicholls as typical: 1. The Court declares that the first defendant acted in breach of his "no profit " fiduciary duties as set out in paragraphs 279 and 280 of the Reasons. 2. The Court declares that the first defendant acted in breach of his "no conflict" fiduciary duties as set out in paragraph 283 of the Reasons. 3. The Court declares that the first defendant is liable under the second limb of the rule in Barnes v Addy in respect of the Emmott's breaches of "no profit duty", "duty of loyalty", "no harm" duty and "duty of confidence" referred to in paragraphs 180 and 182 of the Reasons. 4. The Court declares that the first defendant is liable under the second limb of the rule in Barnes v Addy in respect of the Emmott's breaches of the "no conflict" duty referred to in paragraphs 180 and 182 of the Reasons. 5. The Court declares that the first defendant between 1 November 2005 and 31 March 2006 acted in breach of his contractual duties to the plaintiff to: (i) act with fidelity in carrying out his duties as an employee of the plaintiff; (ii) act in good faith in carrying out his duties as an employee of the plaintiff; (iii) act in the plaintiff's interest in carrying out his duties as an employee of the plaintiff; (iv) dedicate all of his time in the course of his employment with the plaintiff in furtherance of the interests of the plaintiff; (v) give three (3) months' prior written notice of resignation from his employment with the plaintiff; (vi) respect and maintain strict confidentiality as to all matters, especially dealings which the plaintiff has as to projects, clients and with Government and State Agencies; (vii) not, following the termination of his employment at the plaintiff, approach, solicit or make offers to any of the plaintiff's contacts, clients or staff and would not seek to work on any projects or developments in which the plaintiff is involved, without the plaintiff's prior consent. 6. The Court declares that the first defendant committed the tort of inducement of breach of contract with respect to Emmott's breaches of his contractual duties to the plaintiff to: (i) observe the usual partnership obligations and duties to each other i.e. Cooperation, of disclosure and of good faith as partners carrying on business in common with a view to making profits; (ii) keep each other fully and promptly informed as to all events, matters and things material or relevant to this Agreement and their relationship; (iii) act with fidelity in carrying out his duties as an employee of the plaintiff; (iv) act with fidelity in carrying out his duties as an employee of the plaintiff; (v) act in good faith in carrying out his duties as an employee of the plaintiff; (vi) act in the plaintiff's interest in carrying out his duties as an employee of the plaintiff; (vii) dedicate all of his time in the course of his employment with MWP in furtherance of the interests of the plaintiff; 7. The Court declares that the first defendant is liable for conspiracy to injure the plaintiff by unlawful means. 8. The Court orders that in consequence of: (i) the aforesaid breaches by the first defendant of equitable obligations owed to the plaintiff; (ii) the aforesaid breaches by the first defendant of contractual duties owed to the plaintiff; (iii) commission by the first defendant of the aforesaid the tort of inducement of breach of contract with respect to Emmott's breaches of his contractual duties; the first defendant is jointly and severally liable with each of the second to fifth defendants to pay to the plaintiff the sums of $US3,508,793.91, €555,258.94 and $AUS4,000,000.00. 131 My consideration of these orders falls into three sections: (1) the declaratory orders made by the trial judge; (2) what relief may be given in equity when a breach of fiduciary duty is also a tort; and (3) how equitable compensation is to be calculated. 132 (1) It is now clear that the court has very wide jurisdiction to make declaratory orders. It is also clear that the court, in its discretion, may determine that it is inappropriate to make a declaration. The "principles" that are discussed in the following paragraphs are cases where the authorities suggest that it would be appropriate not to make a declaration. Because the matter is one of the exercise of discretion, special facts in a particular case may mean that the discretion is exercised other than in accordance with "principle". 133 As a general rule, courts do not make declarations as a mere precursor to an executive order in tort: it is sufficient that the court finds that the defendant has to pay a sum of damages. A declaration in addition is usually of no utility. There are some contractual cases where it has been the custom to make a declaration along the way such as in the typical case of specific performance of a contract; see eg Brinsley v Lynton & Lynnmouth Hotel & Property Co [1895] WN (Eng) 53, 54. However, the same does not occur with tort except in those jurisdictions where one trial fixes liability and a separate trial assesses damages. 134 In the instant case, the primary judge made declarations that the appellants had committed the torts of inducing breach of contract and conspiracy. Such a bald declaration of commission of a tort is not to be found in any precedent book, nor is it of any real utility. Declarations are almost entirely within the areas of public law, status, property law and trust or breach of contract. Of course a person may get a declaration that the defendant is not entitled to do certain acts which acts might also constitute a tort, see Borchard, Declaratory Judgments, 2nd ed, 1941, p 368; Shirvell v Hackwood Estates Co Ltd [1938] 2 KB 577. 135 Declarations must be of the right involved not of the facts found by the court which led to the decision. Thus, a declaration is made that a contract has been terminated or rescinded, not that the defendant has done or not done various acts which amount to a repudiation which the other party has accepted; see eg Lohar Corp Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177, 9179. 136 On the other hand, as Zamir & Woolf, The Declaratory Judgment, 3rd ed, 2002, p 323 [8.54] put it, "not only must [a declaratory order] relate to particular circumstances so as to avoid the error of being only a general statement of legal relationships, but it also must be clear and precise in its actual terms." I adopted that passage in Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122 and it has never been doubted. 137 Ordinarily a declaration must be self contained so that the reader of the order does not have to refer to some other document: Tannous v Mercantile Mutual Insurance [1978] 2 NSWLR 331, 335 (CA). 138 As the matter is discretionary, as I have said, one will find exceptions to the "principles". A reading of DR Williams' chapter in Dharmananda & Papamatheos (eds), Perspectives on Declaratory Relief (Federation Press, 2009) pages 100 and following illustrates this (see particularly the order in Council of NSW Bar Association v Davison [2006] NSWSC 699 set out at p 107). 139 There are also other problems with the declarations made. For instance sub-para (iv) of orders 6, 14 and 19 in each case is merely a repeat of (iii). 140 There are good reasons to say that no declarations should have been made, but, if they were made, they should not have been in the form made by the primary judge. 141 (2) At [289] the primary judge found that the tort of conspiracy to injure by unlawful means was made out. He said that it was clear from the evidence before the court to which he had referred earlier that: "one of the purposes of the conspiracy was to injure MWP. Although the predominant purpose of the defendants was to obtain financial advantage from their Temujin and associated activities, the relevant proof of the fraud is seen in the intentional creation of a situation: i. in which the conspirators deprived MWP of the continuing opportunity to receive fees from sundry clients; and at the same time ii. as well as depriving it of its opportunities to profit by sharing with such clients across a range of possible deals, [hence prejudicially affecting MWP in relation to an interest, opportunity or advantage] knowing that the conspirators had no right to prejudice MWP in this fashion." 142 The primary judge then considered the tort of Interference with contractual relations. After discussing the authorities, he found at [302] that Mr Emmott's conduct in failing to disclose what he had done with respect to establishing Temujin and providing it with business constituted a breach of each of the detailed contractual obligations which the judge recorded. Messrs Nicholls and Slater knew of, or were reckless to the existence of, the above obligations and acted so as to procure their breach. 143 The primary judge, however, found Mr Slater not guilty of negligence [211] and [551]. 144 As I have set out, in order 8 against Mr Nicholls (and the same occurs with order 16 against Mr Slater) the primary judge ordered those appellants to pay moneys consequent upon their liability for two torts and breach of fiduciary duty as rolled up amounts. His Honour also ordered TSL (order 20), TIL (order 24) and TFZE (order 28) to pay the same rolled up amounts for their knowing participation in the "breaches of duty" owed to MWP by Messrs Nicholls and Slater. 145 The reasons for judgment show that the primary judge reached the amounts to be paid only by considering equitable compensation as a consequence of breaches of fiduciary duty and assumed that he then did not need to consider damages for the torts. 146 There were, of course, errors implicit in this statement. 147 First, the assessment of equitable compensation and common law damages for the same basic act are not necessarily identical: Pilmer v Duke Group Ltd [2001] HCA 31; 207 CLR 165, 201 at [85] and 225 at [153]. It must be noted as Matthew Conaglen does in his Fiduciary Loyalty (Hart Publishing, (2010), p 224) that the elements to be proved for a successful claim of breach of fiduciary duty are not normally the same as those required to establish a common law cause of action. 148 Secondly, if the plaintiff had elected an account of profits, the money to be paid by the appellants to the respondent could have been quite different in amount depending on whether damages were assessed at law for loss, or an account taken in equity as to what the appellants had gained. 149 Thirdly, the time at which the damages or compensation is assessed may be materially different. 150 However, on the other hand, it must be noted that there are some situations where the amount to be awarded for damages at common law and for equitable compensation will be approximately the same; see eg Nocton v Ashburton [1914] AC 932 and on an allied point, Target Holdings Ltd v Redfern [1996] AC 421, 432. 151 One must bear in mind before taking too much guidance from what is said in the preceding paragraph that in Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484, 500 at [39] the High Court said, obiter, that there must be a real question as to whether considering the unique foundation and goals of equity there is any warrant for assimilation even to a limited extent with the measure of compensatory damages in tort and contract. 152 Paragraph 16 of the amended notice of appeal puts that the primary judge was in error in not holding that if the appellants were liable to pay damages at law, they were not liable to pay compensation in equity but the respondent must be left to its remedy at law. Mr Lindsay SC enlarged on this in his oral argument. I will call this "the proposition". 153 I have voiced the proposition in the past, see Youyang Pty Ltd v Minter Ellison [1981] NSWCA 198 at [50] and following. That decision was reversed by the High Court, Youyang Pty Limited v Minter Ellison Morris Fletcher [2003] HCA 15; 212 CLR 484. 154 The High Court did not refer to the proposition. The reason for this is that that court's reasons were that (with very limited exceptions) if there is a trust fund and a trustee and the fund is lost, the trustee must restore it, so that one does not get into the realm of compensation. 155 There is not as far as I am aware any clear authority for the proposition. If the case is in the concurrent equity jurisdiction, it would clearly be the case that, if the remedy at common law is adequate, then equity would not intervene at all. 156 If the only reason for the remedy at law being inadequate was the impecuniosity of the defendant, even then, equity would give the minimum relief, that is some order not exceeding the amount that the plaintiff would have got at law had the defendant been solvent. 157 As I understand the submissions of Mr Walton SC, he says that this case is not in the concurrent jurisdiction, but it is in the same plight as the trustee situation considered in the Youyang case: it is in the exclusive jurisdiction. 158 Mr Walton submits that where there is a breach of a fiduciary duty even if the defendant does not have possession of a fund or property in the traditional sense, he or she must restore what the plaintiff has lost, in this case the value of the lost business opportunities which the appellants have "stolen". 159 There are two difficulties that immediately spring to mind about this submission. The first is that it is difficult to say that a case is in the exclusive jurisdiction when it is closely linked with two common law torts (however, this was also the case in Youyang). The second is that the respondent is not seeking restoration of the property even in the form of an account of profits, but is seeking compensation for deprivation of notional property. 160 I do not consider that there is anything to be gained by endeavouring to classify cases of breach of fiduciary duty where there is a concurrent breach of contract as being in either the concurrent or exclusive jurisdictions. However, normally, breach of fiduciary duty is usually put into the exclusive jurisdiction. However, one should not attempt to define categories and then cram every case into one or other of those categories. 161 Although there is no case supporting the proposition, there is a strong passage in Kirby J's judgment in Pilmer v Duke Group Ltd [2001] HCA 31; 207 CLR 165, 218 [138] proposition (3) against the proposition. That paragraph concludes: "[The plaintiff] is entitled to advance its case as it chooses. It is not necessary for it first to exhaust any remedies it may have at common law." 162 That passage is part of a dissenting judgment. However, it must be noted that the majority judgment, though it did not deal with the point directly, seemed to have no difficulty in the court dealing with common law tort and breach of contract and breach of fiduciary duty in the one trial. 163 However, whilst every serious utterance of Kirby J is itself of authority, it must be remarked that the only authority that his Honour cites in support is a few paragraphs from Tilbury, Civil Remedies, Vol 1 (1990), pp 12-15, [1021]-[1025]. However, as Professor Tilbury acknowledges, that part of what he wrote is contrary to what Windeyer J said in Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3; 119 CLR 460, 504 that when parties enter into a contract their expectation is that the contract will be performed, that the other party will keep his promise, ie that is to be the only remedy. 164 I said during argument, and I repeat, that this sort of problem could not have occurred before the Judicature Act as the plaintiff would have had to go either to a court of law for damages in tort or to a court of equity for equitable compensation for breach of fiduciary duty. 165 It would seem to me, that, on first principles, if an application were made to stay the equity proceedings based on the same facts as extant common law proceedings, equity may well have stayed the proceedings as an abuse of process. 166 Thus, as a matter of practice, if the defendant took the point, a plaintiff would have to elect between pursuing its common law case or its equity case. 167 However, by analogy with the waiver of tort cases, nowadays that election need not be made until decision on liability. 168 In the present case, there was no application for a stay on this ground or on the ground of multifariousness. Further, there is no ground of appeal that the primary judge ought to have made the respondent elect as to whether it would pursue common law or equitable relief. 169 I must conclude that whilst the position is still arguable up to High Court level, the majority opinion of modern judges would be that the proposition is incorrect and that if the plaintiff could frame its case in contract, tort and breach of fiduciary duty, it is the right of the plaintiff to elect which way it will focus its case and even shortly after a decision on liability, it may make its election as to which remedy to pursue. 170 I reject Mr Walton's submission that the court can treat a loss of business opportunity as though it were property. Although some equity courts have in recent times taken an expanded view of what is property, it is hard to see how a business opportunity is a sufficiently definite conception to be classed as property and certainly it does not have the attribute of assignability. 171 In any event, the High Court's treatment in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89, 144 at [120] to my mind makes it almost impossible for even an intermediate appellate court to hold that loss of a business opportunity is in the same plight as property. 172 However, in many cases equitable compensation may be assessed against a fiduciary in the same manner as if the fiduciary were a trustee of a fund or property even though the fiduciary does not have property vested in him or her. Thus, in McKenzie v McDonald [1927] VLR 134, where an estate agent had unconscientiously induced a widow to part with her property to himself at an undervalue, Dixon AJ ordered that the agent pay equitable compensation based on the true value of the property: another example is provided by Nocton v Ashburton [1914] AC 932. 173 In Pilmer v Duke Group Ltd [2001] HCA 31; 207 CLR 165, 224 at [149]-[150], Kirby J noted that the mere fact that no property is involved does not relieve the fiduciary from being liable for proper compensation. 174 (3) It seems to me that as the primary judge calculated the monetary remedy on the basis of equitable compensation, this Court, on appeal, should assume that the respondent made an election for that remedy over common law damages. Thus, without prejudice to what the parties may do on any retrial, I should approach the question of remedy on that basis. 175 There is a vital difference between an order for account of profits and an order for the payment of equitable compensation. In the former case, the plaintiff adopts what the defendant did, virtually as its agent and asks the agent to pay over the profits the agent made. In the latter case, the defendant is treated as a wrongdoer and is liable to pay what the plaintiff lost by its wrongdoing. 176 Mr Walton cited authority which seemed to suggest that when assessing equitable compensation, the court did not require a plaintiff to prove that it would probably have obtained the business opportunity for itself had not the defendants hijacked it. Those authorities refer to an account of profits, they do not apply to compensation or damages. Indeed, this difference is one of the major considerations in deciding what election of remedies a successful plaintiff makes. 177 The primary judge noted the decision of this Court in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; 56 NSWLR 298 and accurately said that that decision precluded him from awarding exemplary damages. 178 However, he then said that he should assess equitable compensation on a robust basis. The word "robust" was the key word used by Handley JA in this Court in Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46, 59 when dealing with a valuation problem. There, his Honour used the term to denote the principle made famous at common law in Armory v Delamirie (1722) 1 Stra 505; 93 ER 664; [1558]-[1774] All ER Rep 121 that if the facts as to valuation are in the defendant's camp and it does not lead evidence, the court is at liberty to take the highest probable value as the measure of damages. 179 The word "robust" in this context does not give judges liberty to "think of a number", nor does it allow exemplary damages to be awarded under some other name. 180 In the instant case, the primary judge added $4,000,000 to his award for equitable compensation under the guise of being robust and also because of the alleged "principle" which the primary judge expressed as "Nullus commodum capere potest de injuria sua propria" (No one can obtain an advantage by his own wrong). 181 It is odd for the primary judge to have chosen Latin to express this "principle" and the fact that Latin was used disguises the fact that there probably is no such principle. I say "probably" as little argument was actually addressed to this matter in submissions. The maxim is, as most maxims are, merely a compendious way of referring to a whole series of situations including some cases of estoppel and cases where there is doubt about a point where the doubt is resolved against the wrongdoer. 182 This is abundantly clear not only from the discussion in Broom's Legal Maxims (see 10th ed [1939] pp 191 and following), but also from discussion in more recent times such as my judgment in Drinkwater v Caddyrack Pty Ltd (25.9.1997, unreported, affirmed sub nom Kyrwood v Drinkwater [2000] NSWCA 126 but this point not considered) and the discussion in this Court in Ruthol Pty Ltd v Mills [2003] NSWCA 56; 11 BPR 20,793 at [94] ff per Sheller JA with Meagher JA and Cripps AJA agreeing. In no illustration of the maxim has it ever been suggested that a judge can add four million dollars onto a verdict just because he or she considers the defendant a wrongdoer, a fortiori in a case where an award of exemplary damages or their equivalent is forbidden. 183 This being so, it is unnecessary to discuss the applicability of the counter maxim, "Fraus non est fallere fallentem" (It is not fraud to deceive a fraudster). 184 Wisely, there was only token support for this part of the primary judge's reasons on the appeal as the award of four million dollars cannot be supported. 185 It is inappropriate to consider the primary judge's calculations in detail as the case has to go back for retrial. I will only deal with matters of principle. 186 The other error in the assessment of equitable compensation is the primary judge's failure to consider whether the gains made by the appellants could have been earned by the respondent. This was particularly significant in view of the evidence that two of the clients involved gave firm evidence accepted by the primary judge that they would not have retained MWP to act for them in any event. 187 The primary judge seems to have proceeded on the basis that with equitable compensation, there was no need for the respondent to show that it was deprived of moneys it could or should have earned. This would have been the case had there been an election for an account of profits, but, as noted earlier, it is not the case for equitable compensation. 188 I thus agree that the result of the appeal is that the orders made below must be set aside and the case remitted for retrial with the guidance that I trust the reasons given in this Court will give the rehearing. 189 Finally, on quite a different topic, might I venture the thought that it is usually a wise exercise of discretion in cases where proceedings have been commenced against an alleged principal and separate proceedings are commenced against alleged accessories that the trial of the proceedings against the principal be tried first. 190 LINDGREN AJA: TABLE OF CONTENTS INTRODUCTION 191 DRAMATIS PERSONAE 196 Parties to the primary proceeding 196 Michael Wilson Partners Limited 196 Michael Earl Wilson 200 Robert Colin Nicholls 202 David Ross Slater 207 John Forster Emmott 210 Temujin Services Limited 227 Temujin International Limited 228 Temujin FZE 236 Shaikenov & Partners LLP 237 Temujin Holdings Ltd 238 Clients 239 Thomas Sinclair 240 Rob Schoonbrood 250 Kangamiut Seafoods 264 Lancaster Group 269 THE CO-OPERATION AGREEMENT 273 THE PRINCIPAL REASONS FOR JUDGMENT 279 THE SUPPLEMENTARY REASONS FOR JUDGMENT 286 THE ARBITRATION 293 THE APPEAL AND CROSS APPEAL 314 GROUNDS OF APPEAL 316 I DENIAL OF PROCEDURAL FAIRNESS – REASONABLE APPREHENSION OF BIAS (para 1 of grounds of appeal 317 II LACK OF TERRITORIAL CONNECTION (para 2 of grounds of appeal) 318 III CHOICE OF LAW (para 3 of grounds of appeal) 319 Wrongly imposing on the appellants the onus of proving the identity and content of applicable foreign law (ground of appeal 3(a)) 320 Failure to find that the law governing the contracts of employment between MWP and Messrs Nicholls and Slater was the law of Kazakhstan (ground of appeal 3(b)) 336 Failure to find that MWP's claims in tort were governed by the law of Kazakhstan (ground of appeal 3(c)) 338 Failure to find that subject to s 7 of Foreign Corporations (Application of Laws) Act 1989 (Cth), MWP's claims for equitable relief were to be determined by the law of Kazakhstan (ground of appeal 3(d)) 339 Failure to determine whether Mr Emmott breached obligations as an officer or member of MWP by applying or having regard to a non-Australian system of law as required by the Foreign Corporations (Application of Laws) Act 1989 (Cth), s 7 (ground of appeal 3(e)) 347 Failure to hold that MWP bore the onus of proving its entitlement to relief, including the onus on all questions of the applicable law (ground of appeal 3(f)) 364 Failure to hold that on the evidence, in particular that of Professor Butler, MWP had under Kazakhstan law no entitlement to relief against appellants beyond nominal compensation (ground of appeal 3(g)) 365 Erroneously holding that his Honour could, apparently as a matter of discretion, apply the law of New South Wales without consideration what (if any) entitlements MWP had under the law of Kazakhstan or any other system of law (ground of appeal 3(h)) 367 IV ABUSE OF PROCESS (para 4 of grounds of appeal) 369 V FAILURE TO PUBLISH ADEQUATE REASONS IN SUPPORT OF FINAL ORDERS (para 5 of grounds of appeal) 370 VI FAILURE TO MAKE FINDINGS ARISING FROM MWP'S CARRYING ON A LEGAL PRACTICE (paras 6 and 7 of grounds of appeal) 371 VII CREDIT FINDINGS (paras 8 and 9 of grounds of appeal) 372 VIII FINDINGS OF FACT NOT SUPPORTED BY EVIDENCE OR INCONSISTENT EVIDENCE (para 10 of grounds of appeal) 372 IX FAILURE TO MAKE OUT ENTITLEMENTS AND CAUSES 372 OF ACTION (paras 11 – 15 of grounds of appeal) X REMEDIES (paras 16-20 of grounds of appeal) 373 XI ERRONEOUS ADMISSION OF MR SCHILLING'S EVIDENCE AND ERRONEOUS APPLICATION OF, AND ATTRIBUTION OF PROBATIVE VALUE TO, THAT EVIDENCE (para 21 of grounds of appeal) 374 XII THE ARBITRATION AND THE MOTIONS FOR ADDITIONAL EVIDENCE TO BE RECEIVED 375 General 375 The Award 388 The Colorado Proceeding documents 404 CROSS APPEAL 405 CONCLUSION 407 INTRODUCTION 191 The appellants appeal from orders of a Judge made on 11 December 2009 that were supported by Principal Reasons for Judgment published on 6 October 2009 (Principal Reasons) and Supplementary Reasons for Judgment published on 11 December 2009 (Supplementary Reasons). 192 His Honour made against each appellant declarations of various classes of wrongdoing and an order that in consequence the appellant was liable, jointly and severally with the other four appellants, to pay to the respondent (plaintiff below) the sums of $US3,508,793, €555,258 and $AUS4,000,000. 193 The first appellant (Mr Nicholls), the second appellant (Mr Slater) and a third person, John Forster Emmott (Mr Emmott) (who was not sued), were employed by or, in the case of Mr Emmott was a "quasi partner" with, the respondent (MWP) in its business in Kazakhstan and nearby countries. MWP's case, which his Honour sustained, was that the three had misappropriated to themselves or to one or more of the third, fourth and fifth appellants with which they were associated (the Temujin companies), various opportunities to undertake legal and related work which, but for their wrongful intervention, would have enured to the benefit of MWP. 194 His Honour made declarations of breach of fiduciary duty, breach of contract, inducement of breach of contract, and conspiracy to injure by unlawful means. In addition, he made numerous declarations of accessorial liability, including accessorial liability under the second limb of the rule in Barnes v Addy (1874) LR 9 Ch App 244, and knowing participation in breaches of duty owed to MWP by Mr Nicholls, Mr Slater and Mr Emmott. 195 His Honour dismissed a motion brought by the appellants for dismissal of the proceeding as an abuse of process. DRAMATIS PERSONAE Parties to the primary proceeding Michael Wilson Partners Limited (MWP) 196 MWP is incorporated in the British Virgin Islands. It has branch offices in Almaty, Kazakhstan and Baku, Azerbaijan. Through its Almaty office, it operates as a law firm and, according to his Honour's finding, also as a business consultancy, in Kazakhstan, the cental Asian region, the Caucasus, Russia and Ukraine. 197 An essential part of MWP's business involved the structuring of investments in Kazakh assets, in particular energy and mineral assets, to attract foreign investors, and to achieve listing on a public stock exchange. MWP refers to this aspect of its business as the "Structured Investments Business". 198 The Structured Investments Business has a fee structure which often includes a success fee or commission, which or a component of which may be an opportunity to take equity in the investment. 199 The founder and managing director of MWP is Michael Earl Wilson. Mr Wilson was not forthcoming concerning the ultimate beneficial ownership of the shares in MWP. He said that they were owned by Windsor Fine Arts Establishment Ltd (WFAE), a company registered in Liechtenstein, but was unable or unwilling to answer questions concerning the beneficial ownership of the shares in WFAE or the control or activities of that company. Although pressed, he said only that WFAE was a "family structure". Michael Earl Wilson 200 Mr Wilson was admitted as a solicitor in London in 1984, working at Baker and McKenzie where he became a partner in 1991. In 1994 he established a branch of that practice in the Central Asia region. 201 Mr Wilson left Baker and McKenzie to establish MWP, which he did on or about 14 July 1998 with an office in Almaty. At MWP, Mr Wilson has continued to practise in commercial law. Robert Colin Nicholls 202 The first two appellants, Robert Colin Nicholls and David Ross Slater, are also lawyers. So is Mr Emmott, who, as noted above, was not sued. 203 The first appellant, Mr Nicholls (first defendant below), is an Australian barrister who was admitted to the Barristers' Roll in New South Wales. Most of his career, however, was spent as a solicitor at Freehills in Sydney where he was a partner. 204 His Honour found that Mr Nicholls was employed as a Senior Associate by MWP beginning on 24 April 2004. On 31 January 2006, Mr Nicholls gave Mr Wilson one month's notice of the termination of his employment. That employment ceased on 1 March 2006. Mr Nicholls then commenced working with Mr Slater in the Temujin office in Almaty. Mr Slater had left MWP and established that office a little earlier (see below). 205 The primary judge rejected Mr Nicholls's claim that there never was a contract of "employment" between him and MWP. His Honour accepted Mr Wilson's evidence that on or about 1 April 2004, by telephone from Sydney, Mr Nicholls accepted an offer of employment that had been emailed to him on that date. The emailed letter of offer was signed on behalf of MWP by Messrs Wilson and Emmott. It concluded by inviting Mr Nicholls to sign and return the letter to indicate acceptance but he did not do so. The appellants challenged his Honour's finding of an oral acceptance. 206 The letter contained confidentiality and non-solicitation provisions but no general post-employment restraint on practice. The non-solicitation provision was to the effect that if Mr Nicholls should leave MWP, he would not, without MWP's consent, approach, solicit or make offers to any of MWP's clients and would not seek or work on any projects or developments in which MWP was involved. The letter provided for the giving of three months' notice of termination. As noted above, however, Mr Nicholls gave only one month's notice. David Ross Slater 207 The second appellant (second defendant below), David Ross Slater, is admitted as a solicitor in New South Wales. Mr Slater's employment agreement was contained in a letter of offer from Mr Wilson dated 19 July 2005 and an acceptance by Mr Slater's countersignature on the letter on 20 July 2005. The letter provided for Mr Slater to work for MWP from 5 September 2005 to 16 December 2005 as an Associate based in Almaty. The contract contained confidentiality and non-solicitation provisions but no general post-employment restraint on practice. The non-solicitation provision was to the effect that if Mr Slater or MWP should "terminate" the agreement, Mr Slater would not approach, solicit or make offers to any of MWP's contacts, clients or staff and would not seek to work on any new projects or developments in which MWP was or had been involved. 208 A second offer of employment was made to Mr Slater on 2 December 2005 which he did not accept. He did, however, continue working in the MWP office in Almaty beyond 16 December 2005 down to 20 December 2005, for which additional period he was paid by MWP. 209 On 21 December 2005 he cleaned out his desk and his office at MWP and flew to Helsinki on holiday. He gave those at MWP no indication that he would not be returning to the office. When he returned to Almaty on 6 or 7 January 2006 it was not to resume working for MWP but to establish the rival Temujin practice on 9 January 2006, working from the office of Shaikenov & Partners LLP (see below) in Almaty. (At [2] the primary Judge said that Mr Slater was an associate at MWP from 1 September 2005 to 9 January 2006.) John Forster Emmott 210 Mr Emmott was born in Australia and was admitted as a solicitor of this Court in 1978. He was admitted as a solicitor in England and Wales in 1985. He spent most of his career employed by, or as a partner in, the London firm of Richards Butler. 211 Unlike Messrs Nicholls and Slater, Mr Emmott had a formal (but poorly drawn) contract with MWP. It was dated 7 or 8 December 2001 (the date is difficult to read) (the Emmott Agreement). 212 Although Mr Emmott was not a party to the proceeding before his Honour, his role in the events that gave rise to the litigation was critical. Of the three men, he was the most senior and longest standing employee of MWP. The primary Judge thought that of the men, Mr Emmott was the backbone of the arrangement between them. Therefore I will outline the contents of the Emmott Agreement in some detail. 213 The Emmott Agreement recited that Mr Emmott was a partner in the London-based international law firm, Richards Butler, and that MWP had a "registered Branch" in Kazakhstan where it had a licence to provide legal services which it had been doing since August 1998. In cross-examination Mr Wilson said that when MWP was formed, a licence to practise law in Kazakhstan was required and that MWP obtained and still held such a licence, although the requirement no longer existed. He said that in effect MWP practised international law "marrying the transactions and documents in the transactions" while local Kazakhstani lawyers "provided the local law input". 214 Clause 1.1 provided that Mr Emmott was to join MWP "as a director and shareholder" as from 7 January 2002 in accordance with the terms set out in the Emmott Agreement. 215 Clauses 1.2, 1.3 and 1.4 were as follows: 1.2 MWP and Mr Emmott have agreed to enter into a long-term and mutually acceptable business relationship and association and that they will share and be party to much sensitive, confidential and valuable information, not least as to MWP's clients and contacts established in the Region since 1994 and as to Mr Emmott's own clients and contacts: 1.3 MWP and Mr Emmott have agreed that their fundamental strategy is to create the leading independent legal and business consultancy firm, not only in Kazakhstan, but also throughout the Region, which will be developed pursuant to a strategic plan and budgets to be negotiated and agreed between the Parties and to be updated on a regular basis. The Parties expect that this can be achieved by them acting in partnership over a period of three to five (3-5) years and they will mutually devote all of their time, energy and efforts in order to achieve this as quickly as is possible and in order to maximise the value, client base, name and reputation of MWP in Kazakhstan and throughout the Region. In particular, the Parties have agreed to consider and, if viable, acquire existing firms, practices or businesses or recruit staff in order to open and establish offices or presences throughout the Region as soon as is possible (economics permitting) …. Any such expansion shall be funded, insofar as is possible, from the cash flows of MWP, from debt and equity financing and/or from Mr Emmott and the shareholders of MWP (should they agree) in proportion to their respective net profit sharing interests in the business; 1.4 Although the cooperation established between the Parties pursuant to this Agreement is as co-shareholders and co-directors in MWP, a legal entity , the Parties have agreed that in effect MWP will function and operate as a quasi-Partnership between them and the Parties shall have and observe the usual partnership obligations and duties to each other i.e. co-operation, of disclosure and of good faith as partners carrying on business in common with a view to making profits. (my emphasis) The Emmott Agreement contained no general post-contract restraint on practice. 216 There are suggestions in the Emmott Agreement that it was a contract between Messrs Wilson and Emmott, but Mr Wilson was not a party to it. 217 Notwithstanding some difficulties, it seems appropriate to describe the relationship between MWP and Mr Emmott as a quasi-partnership or joint venture in which Mr Emmott owed partner-like duties to MWP. 218 Clause 2.1 was to the same effect as cl 1.1 (see [214] above). 219 Clause 2.2 provided that Mr Emmott would be a director of MWP with a 33% profit sharing interest, which was to be "earned" as set out in the ways set out in the clause. One of the ways was the contribution of Mr Emmott's 33% share of the net profits up to GBP 225,000 (cl 2.2.1). Another way was "by devoting his full time and attention to developing the practice and business of MWP" (cl 2.2.2) and another was "by seeking to bring and refer to MWP all and as many as is possible of his clients and contacts" (cl 2.2.3). 220 Clause 2.3 provided that when Mr Emmott had contributed the amount of GBP 225,000 for his 33% net profit share, he would be entitled to receive a 33% shareholding in MWP, and that MWP and its shareholders would cause the necessary shares to be issued or transferred to him or his nominee. This provision assumed importance in an arbitration to which MWP and Mr Emmott were parties (see [225] and [293] ff below). 221 Clause 2.4 provided that Mr Emmott and MWP would fully and closely co-operate in order to promote, develop and enhance the business of MWP and would "not compete in any manner whatsoever". Introduction of any "new partner" to MWP was subject to the agreement of both parties. 222 There were provisions for an annual business plan and a budget to be agreed to by MWP and Mr Emmott (cl 2.5) and payment of a "minimum monthly draw or salary" to be paid by MWP to Mr Emmott (cl 2.9). Clause 2.13 was as follows: Mr Emmott will use all reasonable endeavours (and subject to clients' instructions) refer to and bring with him to MWP all and any clients, contacts or matters howsoever relating to Kazakhstan and the Region in or with which he is currently involved in a manner whatsoever and on or in relation to which he is instructed or with whom he has established contact or relations, it being recognised that this Agreement creates sole and exclusive relations between Mr Emmott and MWP. 223 The Emmott Agreement provided (cl 3.1) for termination by the giving of six months' notice by either party to the other. On 30 June 2006 when he knew that Mr Wilson was away attending a conference in London, Mr Emmott left a letter of resignation in an envelope on Mr Wilson's desk in MWP's Almaty office. Shortly afterwards, he went to the airport where he boarded a plane for overseas. Upon his return to Almaty, he joined Messrs Slater and Nicholls in the Temujin practice. Upon Mr Wilson's return to Almaty he found Mr Emmott's letter of resignation. 224 Rather than give six months' notice of termination, Mr Emmott had purported to terminate the Emmott Agreement immediately. On 20 July 2006, MWP accepted Mr Emmott's act as a wrongful repudiation of the Emmott Agreement. 225 Clause 5.2 of the Emmott Agreement provided that it was governed by the laws of England and Wales, and that any disputes were to be referred to arbitration in London. MWP's claims against Mr Emmott were in fact the subject of an arbitration before three arbitrators in London initiated by MWP (the Arbitration and the Arbitrators). The Arbitrators made a "Second Interim Award" (the Award) on 22 February 2010 – after the primary Judge's orders were made (the Arbitration and the Award are discussed at [293] – [313] below). 226 By an amended notice of motion filed on 23 June 2010 the appellants sought leave to lead additional evidence on the hearing of the appeal in the form of evidence of the Award and associated documents. By an amended notice of motion filed on 14 July 2010 MWP sought an order that the appeal, insofar as it depends on para 22 of the amended notice of appeal (which raises the Award) be dismissed. In the alternative, MWP sought leave to adduce evidence in response to any evidence that the appellants are given leave to lead on the appeal. The motions are dealt with at [375]– [404] below. Temujin S e rvices Limited (TSL) 227 The third appellant (third defendant below), Temujin Services Ltd (TSL) is incorporated in British Virgin Islands. It was established by Messrs Nicholls, Slater and Emmott on or about 8 March 2006. It operates as a service company providing services to the fourth appellant, Temujin International Limited. Temujin International Limited (TIL) 228 The fourth appellant (fourth defendant below) is Temujin International Limited (TIL) in its own capacity and as trustee of the Temujin International (Trading) Trust (the Trust). Of the three Temujin companies, TIL had the most important role for the purposes of the case. 229 TIL was established on or about 19 December 2005 with Mr Slater as its sole shareholder. Fifty thousand shares in TIL were issued to him on that date. His Honour found that TIL was established by all three of Messrs Nicholls, Slater and Emmott but the appellants say that the finding should have been that it was established by Mr Slater alone. TIL operates as a business adviser, agent and arranger and as a provider of legal services. 230 The Trust was established by a Trust Deed executed the following day, 20 December 2005, by Alexei Volkov as settlor and TIL as trustee. His Honour said (at [125](iii)) that the Trust appeared never to have been "activated" and that no units had been shown to have been issued in respect of it. 231 In early 2006, TIL established an office in Almaty. It was registered with the assistance of Mr Shaikenov (see below). From an early stage Mr Slater was in charge of the office. 232 It is convenient to note here that also on 20 December 2005, two agreements were executed. One was a "Co-operation Agreement" between Messrs Nicholls, Slater and Emmott and Arman Shaikenov. Mr Shaikenov was a citizen of the Republic of Kazakhstan, a practising lawyer and the principal of the law firm Shaikenov & Partners LLP (Shaikenov) (see below). The other was a "Services Agreement" between Shaikenov and TIL. 233 The Co-operation Agreement is discussed at [273] – [278] below. Generally speaking, it provided for the establishment of a "consultancy business" by Mr Shaikenov and Mr Slater involving the provision of legal services. The business was to be owned and operated by TIL. The Co-operation Agreement provided that Mr Nicholls was entitled to join in no later than 30 March 2006, and that Mr Emmott was entitled to join in no later than 30 July 2006. As noted earlier, both did so. The Co-operation Agreement provided (cl 6, Sch 2): "TIL will establish a branch in Almaty Kazakhstan. [Mr Slater] will be the general director of such branch, resident in Almaty, Kazakhstan". His Honour observed (at [27]) that the establishment of the Almaty office of TIL with Mr Slater in charge was in accordance with this provision. 234 The Services Agreement provided for Shaikenov to provide services to TIL. 235 The sole director of TIL is a "Mr Vasquez", a British Virgin Islands resident, who took no part in the proceeding. His Honour observed that it was not clear that Mr Vasquez even knew of the proceeding. Temujin FZE (TFZE) 236 The fifth appellant (fifth defendant below) Temujin FZE (TFZE) is incorporated in the Free Trade Zone of Ras Al Khaimah in the United Arab Emirates (UAE). "FZE" stands for "Free Zone Establishment". Mr Nicholls holds the shares in TFZE on trust for TIL. Like TSL, TFZE was incorporated on 8 March 2006 and operated as a service company providing financial and other services to TIL. It also provides such services to clients in the United Arab Emirates (UAE). Mr Nicholls has been the manager of TFZE since its incorporation. Shaikenov & Partners LLP (Shaikenov) 237 Shaikenov was the sixth defendant below. Shaikenov, referred to above, it is a limited liability partnership of which Mr Shaikenov was the principal with an office in Almaty. MWP accepted that it was not entitled to pursue its claim against Shaikenov for reasons concerning service. Accordingly, no order was made against it and it is not a party to the appeal. Temujin Holdings Ltd (THL) 238 Temujin Holdings Ltd (THL) was the seventh and last defendant below. It did not enter an appearance. Leave to proceed against it was given on 30 May 2008. His Honour ordered that the proceeding be dismissed as against THL, with no order as to costs as between MWP and THL. THL is also not a party to the appeal. Clients 239 MWP's claims before his Honour related to various individuals and companies some of which were former clients of MWP and others of which, so MWP claimed, were on the way to becoming its clients. Thomas Sinclair 240 Mr Sinclair was associated with Sokol Holdings Inc (Sokol) and the Chilisai Phosphate project (sometimes the alternative terms "transactions", "deals" or "ventures" are used). MWP commenced work on this project on or about 25 August 2005. It was instructed by Messrs Sinclair, Savage, Utegan and Damitov on behalf of Sokol. Messrs Emmott, Nicholls and Slater worked on the project when they were at MWP. 241 On 20 December 2005 Mr Slater emailed documents relating to the project to a Gmail account that he had just established in preparation for his leaving MWP and establishing the business of TIL. When he established that business he resumed working on the project. 242 Mr Sinclair was a client "of" Mr Emmott who wanted Mr Emmott to undertake his work and did not want Mr Wilson to have anything to do with it. 243 In effect from the establishment of TIL and while Mr Emmett remained at MWP, both MWP and TIL worked for Sokol (his Honour described Mr Emmott, even while he remained at MWP, as being "heavily involved behind the scenes" (at [402])). Once Mr Emmett left MWP on 30 June 2006 and joined TIL, Sokol retained TIL alone. 244 TIL charged Sokol and was paid fees totalling US$266,330 on the Chilisai Phosphate project covering the period 9 January 2006 to 30 September 2006. His Honour rejected Mr Slater's evidence that TIL did no further work on the project after 30 September 2006 (at [409]). 245 The Chilisai Phosphate project led to the flotation of Sunkar Resources plc (Sunkar) on the Alternative Investment Market of the London Stock Exchange (AIM). His Honour thought that there was strong evidence suggesting that TIL received Sunkar shares from the pre-IPO placement on 30 November 2007 (at [418]). 246 Another transaction in which Sokol was involved was the Urals Gold project (sometimes the expression "Urals Gold/Benkala Copper Projects" is used). This concerned the proposed acquisition by Sokol of the Maminskoye gold mine in Russia. MWP was instructed by Sokol to act on the matter from about early September 2005. Once TIL was established it worked on this deal also. 247 The Urals Gold project did not proceed because Sokol decided that its investment should be "swapped" for another mining project. TIL invoiced and was paid fees totalling US$109,292 for work done on the Urals Gold project in respect of the period 9 January 2006 to 30 November 2006. 248 Mr Sinclair was also Chief Financial Officer of Frontier Mining Limited (Frontier) which undertook the Benkala Copper project. Apparently Benkala is a copper-molybdenum-gold deposit located in north-western Kazakhstan within the Urals gold/copper ore belt. MWP did not act or render invoices for fees in respect of this project, but alleges that the project was a continuation of work that MWP had been doing since 2004 for Sokol and, in particular, a continuation of the Urals Gold project. Mr Schilling, an expert called by MWP, "valued" the legal work undertaken by TIL at $625,000. MWP also claimed a success fee of US$12,500,000. 249 His Honour declined to award any remedy to MWP in respect of the Benkala Copper project (at [445]). Rob Schoonbrood 250 Mr Schoonbrood was the Chief Executive Officer of Roxi Petroleum PLC (Roxi) which was listed on the AIM. He had also been the Executive Chairman of UMC Energy plc (UMC), a company incorporated in England and Wales, and a director of Pinegrove Equities Inc (Pinegrove), a company incorporated in British Virgin Islands. 251 His Honour described Mr Schoonbrood's plan as being for UMC "to acquire oil fields that would ultimately be housed in a public company" (at [447]). Roxi came to be that company. The Roxi "project" therefore signifies a group of business opportunities. 252 MWP had a "watching brief" under which it brought possible acquisitions to Mr Schoonbrood's attention. 253 The work undertaken at MWP for Roxi included work relating to the North Karamandybas acquisition. Mr Emmott was the "partner" responsible and Messrs Nicholls and Slater worked on the project. 254 In December 2005 Mr Slater forwarded documents relating to the project from MWP to his recently established private Gmail address. 255 By February 2006 Mr Schoonbrood had determined to embark upon a new course by which he would cease to be associated with UMC. He established Pinegrove as a special purpose vehicle to acquire resource interests in the Commonwealth of Independent States (CIS). Pinegrove was to on-sell the interests to a company to be listed on the AIM. That company came to be Roxi. Roxi was not admitted to the AIM until 22 May 2007. 256 There were three projects on which TIL obtained work and charged fees, as a result, according to his Honour's findings, of breaches by Messrs Nicholls and Slater of their fiduciary duty. These were: the Karamandybas project (or North Karamandybas Contract Area), the Ravninnoye project (or Ravninnoye Contract Area); and the Beibars (Munai) project (or Beibars (Munai) Contract Area). 257 TIL issued invoices for work done as follows: Karamandybas (1 July 2006 to 31 December 2006) totalling €163,992; Ravninnoye (1 August 2006 to 31 December 2006) totalling €124,419; Beibars (Munai) (1 September 2006 to 31 December 2006) totalling €101,817. 258 Roxi was also involved in the acquisition of other interests in oil fields. These included the acquisition of Eragon Petroleum plc (Eragon) which was initially designated "Project X". For Project X TIL invoiced an aggregate amount for the period 1 November 2006 to 31 December 2006 of €29,950. MWP had done no work on this acquisition, but Mr Schoonbrood was a former client of MWP. His Honour considered that this connection did not place Project X within the scope of any breach. 259 TIL also did work for Mr Schoonbrood on a reverse takeover of Eragon, and associated suspension of Eragon from the AIM and its subsequent readmission. It was readmitted on 31 January 2008. TIL worked on the reverse takeover, suspension and readmission. 260 TIL also worked on the proposed acquisition of ADA Oil LLP and ADA LLP. 261 TIL issued invoices for fees on the Eragon reverse takeover covering the period 4 January 2007 to 31 January 2008 totalling US$708,000, and on the ADA acquisition covering the period 1 January 2007 to 31 January 2008 totalling US$463,670. 262 There was evidence that non-refundable cash fees were payable to TIL totalling US$500,000 on the Eragon matter and totalling US$500,000 on the ADA acquisition. His Honour said that there was also evidence that on the re-admission transaction, shares in Roxi were given to Mr Slater himself through a Panamanian entity called "Fencourt Foundation" of which Mr Slater was the beneficial owner. 263 There was a Frontier project on which his Honour concluded that MWP was entitled, at its election, to an accounting for profits or equitable compensation. This was "Project Ablai". The invoice rendered by TIL in respect of Project Ablai was for US$36,959 in respect of the period 1 June 2006 to 30 June 2006. Kangamiut Seafoods 264 In early December 2005, a Danish company Kangamiut Seafoods (Kangamiut), contacted MWP with a view to retaining MWP to act for it. Mr Wilson and Ms Pedersen (MWP's Business Development Director) arranged for Mr Slater to meet Ulrick Rasmussen, the representative of Kangamiut. 265 Mr Slater met Mr Rasmussen in Helsinki in late December 2005. Kangamiut retained TIL, rather than MWP, becoming a client of TIL later in 2006. 266 Neither Mr Rasmussen nor Kangamiut was a client or contact of Mr Slater's: they were contacts of MWP's. 267 TIL invoiced US$39,750 on work done for Kangamiut during the period 31 March 2006 to 30 June 2006. 268 His Honour ruled (at [541]) that MWP was entitled, at its election, to an accounting for profits or equitable compensation in respect of the Kangamiut work. Lancaster Group 269 Lancaster Group (Lancaster) was associated with Mr Nuran Kapparov and his KazInvest Bank. On or about 20 August 2005, Mr Abzhamov of Lancaster) expressed a wish for a meeting with a view to appointing MWP as its legal adviser in connection with a listing on the AIM, probably in the third quarter of 2006. Mr Wilson emailed back saying that the following Wednesday would be fine for a meeting. On or about 28 December 2006, a lawyer at MWP sought to arrange a meeting. 270 On 11 January 2006, Mr Emmott advised Mr Wilson that Lancaster was "some way from appointing lawyers" and that they planned on listing "some time during this year". In April 2006, Lancaster engaged TIL. 271 For the period 31 March 2006 to 30 April 2006, TIL invoiced US$19,504 on the Maersk Oil Joint Venture, which was a project of Lancaster. 272 His Honour ruled (at [534]) that in respect of the Maersk Oil Joint Venture MWP was entitled, at its election, to an accounting for profits or equitable compensation. The Co-operation Agreement 273 The Co-operation Agreement dated 20 December 2005, Mr Slater's last day at work at MWP, laid the basis for much of the conduct of which MWP complained and for which it sought redress. 274 By the Co-operation Agreement, Messrs. Shaikenov, Slater, Nicholls and Emmott established a "consultancy business" (the Consultancy) to be owned and operated by TIL as trustee for the Trust. The first two units in the Trust were to be held by persons designated by Messrs Shaikenov and Slater. If Messrs Nicholls and Emmott should elect to participate one unit would be issued to each of them, so that there would be four units on issue in all. 275 Clause 5 provided that in order to assist Messrs Shaikenov and Slater in funding the business, TIL was to enter into one or more facilities for the provision of funding up to US$300,000. The clause provided that although Messrs Nicholls and Emmott were "not yet legally committed to participating in the Consultancy", each of Messrs Slater, Nicholls and Emmott (not Mr Shaikenov) agreed to provide one third of any shortfall from the operation of the Trust as might be necessary to allow TIL to discharge its obligations to the provider of the facility. 276 Clause 6 was as follows: [Mr Shaikenov] and [Mr Slater] agree and each of [Mr Nicholls] and [Mr Emmott] acknowledge that the business plan for the Consultancy (the "Business Plan") will be as set out in Schedule 2, and that the assumptions and financial projections related thereto (which the Parties will use their respective best endeavours to render correct and achieve) will be as set out in Schedule 3. 277 Paragraph 5 of Sch 2 provided that Messrs Shaikenov and Slater agreed, and that each of Messrs Nicholls and Emmott agreed when the relevant one of them became legally free to do so, to use their respective best endeavours to promote the business of the Trust. 278 Schedule 3 was headed "Assumptions and Financial Projections". It provided for "Drawings" which increased in March 2006 and again in July 2006, no doubt reflecting the times when it was expected that Messrs Nicholls and Emmott respectively would join. THE PRINCIPAL REASONS FOR JUDGMENT 279 At [19] of the Principal Reasons, the primary Judge noted that the central allegations of MWP's case were as follows: Messrs Nicholls and Slater Messrs Nicholls and Slater had breached sundry duties owed to MWP by soliciting MWP's contacts, clients, employees and consultants inter alia by: vi. breaching express and implied terms of their employment contracts with MWP: The respective employment contracts between MWP, Messrs Nicholls and Slater are said to have contained restrictive covenants and obligations of confidentiality to MWP vi. dishonestly and fraudulently breaching their fiduciary duties and duty of care owed to MWP; vi. acted fraudulently; vi. knowingly participating and assisting in Mr Emmott's alleged wrongdoings; vi. Mr Slater is said to have failed to act to the standard one would expect of a solicitor of ordinary competence in NSW. vi. MWP also contends that Slater breached his alleged duty to exercise all reasonable skill, care, diligence and competence that he owed to MWP as a result of negligent advice he gave to a now former client of the plaintiff: Mr Emmott; Mr Emmott vii. Emmott is said to have breached fiduciary duties towards the plaintiff viii. he is said to have breached the terms and conditions of his employment contracts with the plaintiff. ix he is accused of earning secret commissions and benefits through his position within MWP Destruction of document allegations x. There have also been particular allegations levelled at Messrs Slater, Nicholls and Emmott, claiming that they took, used and destroyed MWP's documents from October 2005 and continuing throughout the period of their employment. Under billing xi. the same defendants are said to have under billed MWP's clients for work performed by the three of them on behalf of MWP. Allegations against the remaining six defendants xii. Further, MWP seeks to prove that TIL, TSL, TZFE, THL knowingly participated and assisted in the alleged breaches of duty by Messrs Nicholls, Slater and Emmott: That is, the plaintiff pleads causes of action grounded upon allegations of conspiracy and accessorial liability. xiii. All or some of the remaining six defendants are said to have knowingly participated and/or assisted in any breaches of fiduciary duties or terms and conditions of contract. xiv. All or some of the six defendants are said to have conspired against the plaintiff. 280 His Honour further outlined the nature of MWP's claims as follows: 21. The plaintiff's case is that before, during and after the occasions when Messrs Slater, Nicholls and Emmott left the employ of MWP, sundry activities were engaged in by each of these persons which constituted wrongdoing of the kind pleaded in the extensive and detailed the Third Further Amended Commercial List Statement. The plaintiff's conspiracy case is that the whole of the staged departures by these persons from the employ of MWP was carefully planned. The plaintiff's case is that during the period from about 19 December 2005, TIL with the assistance and cooperation of THL and Mr Shaikenov assisted, procured and solicited Messrs Nicholls, Slater and Emmott to: (i) prefer the business and interest of TIL and Shaikenov to the business and interests of MWP; (ii) compete with the business of MWP; (iii) divert clients and contacts of MWP to become clients and contacts of TIL and Shaikenov; (iv) solicit staff, consultants ad other personnel and cause them to act in breach of their contract and obligations to MWP; (v) divert fee and other income, remuneration and compensation from MWP to themselves, TIL, THL and Shaikenov at the expense of MWP; (vi) wrongly provide, make available for use and disclose confidential, copyright and privileged data, documents and information belonging to MWP and its clients; and 22 The case is that Mr Emmott continued with MWP and during the period when he alone had not yet departed from his employ with MWP, his activities involved his having one foot in his employers camp and the other foot squarely planted in the business activities in which [unknown to MWP] he already had an interest and to which he would migrate once he left MWP. 281 MWP claimed (unsuccessfully) a declaration of a constructive trust over the shares in TIL, TSL and TFZE. In the alternative it claimed an equitable accounting for profits or equitable compensation. As noted elsewhere, in respect of several of the projects, his Honour decided that MWP was entitled to whichever of those two remedies it should elect. 282 In the Principal Reasons his Honour made the following findings: [132] The Co-operation Agreement had been drafted by Mr Nicholls in such a way as to suggest that he and Mr Emmott were not bound to join in the new business but this was an attempt to disguise what was really an immediate partnership of the three men, the terms of which bound all three immediately to fund the venture. [136] – [141] Mr Slater sent seven emails to his newly established private Gmail address enclosing documents relating to the Karamandybas (Roxi), Chilisai Phosphate and Urals Gold transactions and deleted the emails from MWP's computer system in an attempt to conceal this activity. He said he could not recall deleting them, denied that the reason would have been to conceal his actions from MWP, but could offer no other explanation. The primary Judge said that Mr Slater's conduct was "not the actions of an honest man" (at [138]). [160] – [167] After 20 December 2005, Mr Nicholls knew of Mr Emmott's intention to leave MWP and to set up a rival business in Kazakhstan. His Honour rejected Mr Nicholls's testimony that he did not understand that Mr Emmott owed fiduciary obligations to MWP. In an email dated 31 March 2006 (before Mr Emmott left MWP), Mr Nicholls referred to his having set up a consultancy firm with, in effect, Messrs Slater and Emmott. Mr Nicholls knew that Mr Emmott intended to resign with effect from 30 June 2006. [169] Mr Emmott was highly involved in the affairs of TIL after it was established and while he was still working at MWP, and Mr Slater was fully aware of Mr Emmott's involvement. [178] Mr Emmott's activities secretly undertaken while he was still at MWP in the interests of TIL following the departure of Mr Slater and then Mr Nicholls were in breach of his fiduciary duty to MWP. [182] Effectively from around the time when the Co-operation Agreement was made until after he left MWP to join TIL, Mr Emmott was in flagrant breach of the following fiduciary duties: (i) the "no conflict duty"; (ii) the "no profit duty"; (iii) the "duty of loyalty" (including the "duty of disclosure"); (iv) the "no harm" duty (the duty not to inflict harm on MWP in the furtherance of his own interests or those of a competitor); and (v) the "duty of confidence". [182] Mr Emmott was the backbone of the plot and probably played the dominant role in every step of TIL's initial and ongoing activities. [183] – [190] Moneys paid to TIL were paid into any one of three bank accounts: a Westpac (Monash University branch) account in the name of Mr Slater; a USD account and a Euro account, each in the name of THL. His Honour found (at [189], [190]): that TIL was established entirely on the basis of income derived from former clients of MWP and on an interest-free loan of $US200,000 made by Horizon Services NV (Horizon) which TIL had repaid from income so derived; and that save for minor items the bank accounts showed only income derived from former clients of MWP. [191] – [213] His Honour dismissed a claim against Mr Slater in respect of his allegedly negligent advising of a client of MWP, Big Sky Energy Corporation of which Mr Barry Swersky was the principal. (MWP does not cross-appeal against that dismissal.) [214] – [221] His Honour found shortcomings in Mr Wilson's evidence but concluded that subject to questions concerning particular claimed losses, he could "with limited exceptions, be accepted as a witness of truth" (at [221]). [222] – [231] His Honour said that Mr Nicholls's evidence had to be very carefully checked against contemporaneous documents before being accepted and noted that elsewhere in the Principal Reasons his evidence was on occasions rejected. [232] – [243] His Honour concluded that in numerous respects Mr Slater was a witness whose credit could not be accepted unless corroborated by contemporaneous documents or the testimony of other witnesses accepted as reliable (at [232]). He described Mr Slater's claimed "memory loss" on one matter as "nothing more than a device to avoid telling the truth" (at [235]), and his "credit, save as his evidence is corroborated by contemporaneous documents or by other persons of credit [as] worthless "(at [237]) – emphasis in original). [244] – [250] His Honour found Mr Schoonbrood to be a reliable witness. [251] – [270] His Honour described Mr Sinclair as "a witness of credit despite … adopting a fairly partisan approach" (at [270]). [275], [276] Messrs Nicholls and Slater knew that Mr Emmott owed fiduciary duties to MWP, and that by distributing work to TIL while he was still at MWP, Mr Emmott was breaching his contractual duty of fidelity and his fiduciary obligations to MWP, and with that knowledge they participated in that exercise. [279] – [283] Messrs Nicholls and Slater breached the "no profit" fiduciary obligation. There was a causal link between the breach and the establishment of TIL, the work done on the Chilisai Phosphate and Urals Gold/Benkala transactions, and the work done for Pinegrove and Roxi on Roxi's admission to the AIM. They were also in breach of the "no conflict" fiduciary obligation. [289] The tort of conspiracy to injure MWP by unlawful means was made out against Messrs Nicholls and Slater. A purpose of the conspiracy was to injure MWP, although the predominant purpose was to obtain financial advantage from TIL. [297] - [302] Each of Mr Nicholls and Mr Slater procured a breach by Mr Emmott of his contractual obligations to MWP. [303] - [364] The application of a common law legal system was a matter of common contemplation or assumption between the parties when they entered into their respective contracts with MWP (at [355]). They intended their contracts to be governed by the law of New South Wales (at [359]). Alternatively, the system of law with which the contracts had their closest and most real connection was that of New South Wales (at [363]). The defendants failed to prove that Kazakhstan law applied to the contracts of employment and MWP had "overwhelmingly" proved that it did not. Even if Kazakhstan law did apply, the presumption that it was the same as local New South Wales law operated (at [364]). [397] - [427] In relation to the Chilisai Phosphate project , MWP was entitled to elect between an accounting for profits and equitable compensation in relation to legal fees charged by TIL between September 2006 and the pre-IPO issue of shares in Sunkar Resources plc on 30 November 2007. [436] In relation to the Urals Gold project , MWP was entitled to elect between an accounting for profits and equitable compensation in respect of amounts paid to TIL in the form of legal fees up to and including 30 November 2006. [445] In relation to the Benkala Copper project , MWP was not entitled to an election between remedies concerning that transaction. [516] In relation to the Roxi Petroleum project , MWP was entitled to elect between an accounting for profits and equitable compensation concerning the amounts identified by TIL's invoices for work relating to Karamandybas, Ravninnoye and Beibars (Munai), but was not entitled to a remedy concerning amounts received for "Project X" or in respect of amounts received for work done on the re-admission of Roxi (ie, for the ADA and Eragon acquisitions). [527] In relation to Project Ablai , on which MWP and later TIL worked, MWP was entitled to elect between an accounting for profits and equitable compensation concerning the amounts identified by the invoice relating to that Project. [534] In relation to the Maersk Oil Joint Venture , MWP was entitled to an election between an accounting for profits and equitable compensation concerning the amount identified by the invoice rendered by TIL for work relating to that Joint Venture. [541] In relation to Kangamiut , MWP was entitled to an election between an accounting for profits and equitable compensation concerning the amount invoiced by TIL. [542] – [544] MWP was not entitled to an election between remedies concerning Temujin invoices relating to miscellaneous other matters. 283 Finally, based on expert evidence given by Mr Schilling, his Honour ruled (at [545 – [568]) that MWP was also entitled to an amount for "missed legal costs" – an amount that MWP could have charged in legal fees to the clients that were appropriated to TIL if Messrs Nicholls and Slater had not committed the wrongdoings in question. In a table set out at [561], his Honour identified the "missed legal costs". 284 His Honour said (at [582]) that while the conspiracy count had been made out it was difficult to see what remedy, if any, additional to those just mentioned might still be contended for in relation to that cause of action, and that the same comment seemed applicable to the tort of interfering with contractual relations. He indicated that the parties might make further submissions on this issue. 285 The defendants had sought by notice of motion to have the proceeding dismissed as an abuse of process. His Honour dismissed the motion: [583] – [644]. THE SUPPLEMENTARY REASONS FOR JUDGMENT 286 In the Supplementary Reasons his Honour addressed quantification and the form of the orders to be made. 287 His Honour noted (at [21]) that MWP had elected in favour of equitable compensation as opposed to an accounting for profits. 288 There were three classes of loss for which MWP sought equitable compensation: Deprivation of legal fees that TIL had in fact earned; Deprivation of the opportunity of undertaking further legal work (missed legal costs); and Deprivation of a share in particular investments. 289 The claim for equitable compensation was based largely on an expert report of Mr Schilling. 290 His Honour referred to the principle that no man may take advantage of his own wrong (nullus commodum capere potest de injuria sua propria) as having application, for example, where MWP was not in a position to establish conclusively that TIL had received shares in Sunkar from the pre-IPO placement (at [29] – [32]). 291 His Honour: dismissed the claim with respect of the Benkala Copper project (at [47]); refused to award damages for conspiracy separately from equitable compensation for breach of fiduciary duty (at [48] – [50]); declined to award exemplary damages for "conspiracy" (at [50] – [51]); in reliance on the nullus maxim, included $4,000,000 in the amount of equitable compensation in addition to the other amounts of equitable compensation awarded (at [52] – [60]); held that the accessorial liability in equity and tort of TSL, TIL and TFZE followed the liability of Messrs Nicholls and Slater (at [63] – [65]); dismissed the appellants' abuse of process motion and ordered that the appellants pay MWP's costs on it on the indemnity basis, and otherwise ordered them to pay MWP's costs of the proceeding on the ordinary party and party basis (at [72] – [87]). 292 In view of the conclusion reached below, I need not identify, beyond what has already been said, the reasons that led his Honour to arrive at the aggregate amounts of US$3,508,793.91 and €555,258.94 (I referred above to the basis for the award of $4,000,000). Those reasons can be found in the Principal Reasons at [185] – [190], [393] – [396], [397] – [427], [428] – [436], [446] – [516], [517] – [527], [528] – [534], [535] – [541], [545] – [568], and in the Supplementary Reasons at [27] – [44]. At [43] of the Supplementary Reasons his Honour summarised the amounts awarded in a table which was relevantly as follows: Project Principal at 10/12/2009 Chilisai US$2,116,130.52 Urals Gold US$510,098.37 Ablai US$640,309.06 Lancaster US$27,752.42 Kangamiut US$214,503.54 $US Total $US3,508,793.91 Karamandybas €233,345.70 Ravninnoye €177,036.92 Beibars Munai €144,876.33 Euro Total €555,258.94 THE ARBITRATION 293 The Arbitration was initiated by the giving of notice by MWP to Mr Emmott on 14 August 2006. That was before MWP commenced the New South Wales proceeding on 9 October 2006. On 5 December 2006 MWP invited Mr Emmott to consent to be joined in the New South Wales proceeding. His response was to threaten to seek an anti-suit injunction if MWP should attempt to join him as a party in the New South Wales proceeding. 294 On 29 July 2008, the Arbitration hearing was fixed to commence on 10 November 2008 to deal with "issues relating to liability only, and not to the quantum of any damages nor the evidence required for the taking of an account." 295 The transcript of the proceeding before the Arbitrators was before the primary Judge, as was all of the documentary evidence that was before them. However, the Award, the Seventeenth Procedural Order in the Arbitration made in consequence on 24 March 2010, and a "Clarification" issued by the Arbitrators on 6 April 2010, all post-dated his Honour's Principal Reasons, Supplementary Reasons and orders of 11 December 2009. The result of the Arbitration is summarised in the following paragraphs. 296 The Arbitrators found that by the end of 2004 Mr Emmott had "earned" a one-third interest in MWP as provided for in the Emmott Agreement. By that time he had not committed any breach of fiduciary duty, although he had failed to account for certain commissions received and he remained obliged to account for them, as he had acknowledged in the Arbitration. That failure to account was not a breach of fiduciary duty. The Arbitrators observed that "not every breach of duty by a fiduciary is a breach of fiduciary duty" (quoting from Bristol & West Building Society v Mothew [1998] Ch 1 at 16). They observed (para 8.6) that MWP would have had no defence to a claim by Mr Emmott to have an appropriate shareholding in MWP created (if necessary) and vested in him and they rejected MWP's contention that Mr Emmott's subsequent breaches of fiduciary duty somehow deprived him of his entitlement to the one-third shareholding. 297 The Arbitrators decided not to make a declaration of Mr Emmott's interest and an order that MWP, if necessary, create sufficient shares in itself and cause them to be registered in Mr Emmott's name. Rather, they decided to award monetary relief only by ordering appropriate accounts and inquiries and payment of the sum found due. They observed (para 8.13) that this would have the advantage of enabling MWP to set off against Mr Emmott's entitlement amounts that might be found to be due from him to MWP. 298 The Arbitrators found that Mr Emmott had breached fiduciary duties he owed to MWP. At para 4.188 they found that he did so by failing to disclose to MWP: • that Mr Slater was to leave MWP after Christmas 2005 and to start to operate TIL; • that he, Mr Nicholls and Mr Slater had formed the intention to establish TIL; and • that on 20 December 2005 the three men had signed the Cooperation Agreement and documents to establish TIL. The Arbitrators inferred that if disclosure had been made by Mr Emmott as his fiduciary obligation required, Mr Wilson would not have allowed him and Mr Nicholls to meet Lancaster but would have made other arrangements. 299 The Arbitrators confirmed the finding of breach of fiduciary duty at paras 4.129 (misleading and failing to inform MWP of Mr Sinclair's intention to transfer his work to TIL and failing to attempt to persuade Mr Sinclair to stay with MWP), 4.134 (failing to inform MWP of the formation of TIL and to advise his clients to instruct MWP alone), 4.180 (concealing from MWP the intention of Messrs Nicholls and Slater to form TIL and their signature of documents on 20 December 2005), and 6.12 (misleading MWP about Mr Slater's departure). At para 6.12, the Arbitrators described Mr Emmott's conduct as "disgraceful and dishonest conduct … towards his quasi-partner Mr Wilson". At para 8.16 they said that Mr Emmott's conduct since the end of 2005 would have fully justified MWP in dismissing him and, had the parties been ordinary partners, then seeking dissolution of the partnership, probably as from the end of 2005. 300 The Arbitrators found that from near the end of 2005 until his departure on 30 June 2006, Mr Emmott was "guilty of sustained, serious and dishonest breaches of fiduciary duty" (at para 8.14). The Arbitrators found that he assisted Messrs Nicholls and Slater to establish TIL and led them to believe that he would joint them after six months as he in fact did. "He did not tell Mr Wilson what was going on, let alone what his own position was, but prevaricated or lied in order to conceal the truth" (para 8.14). He made no attempt to persuade "his" clients, such as Sokol, who instructed MWP only because he was there, to remain with MWP rather than transfer their work to TIL. Since he did not tell Mr Wilson what was intended, he gave MWP no opportunity to attempt to retain the clients. The Arbitrators observed (para 8.14): He should have kept Mr Wilson fully informed of what was going on, and either given his own notice or told MWP clients that he would not be joining Temujin. He should have advised his clients that if they wanted him to continue to undertake work for them while he remained at MWP they would have to instruct MWP to act alone, for he could not accept joint instructions with Temujin without Mr Wilson's consent. 301 The Arbitrators found that Mr Emmott breached cl 2.2.2 of the Emmott Agreement by failing to devote his full time and attention to developing the practice and business of MWP, although until the beginning of 2006 his shortcomings in this respect were not significant and would not normally give rise to a claim for damages. But devoting his time at MWP to assist in the development of a competitor was of a different order, they said, and would sound in damages by way of a reduction in wages, salary or share in profits to which he was otherwise entitled (para 8.15). 302 The Arbitrators also found that MWP breached its part of the Emmott Agreement in stopping Mr Emmott's credit card and local salary and in failing to recognise and give effect to his entitlement to the one-third interest in MWP. 303 At the end of June 2006 Mr Emmott purported to accept this as a repudiatory breach by MWP but the Arbitrators did not think it was (para 8.16). However, Mr Emmott's breach by leaving MWP without giving six months' notice was, they said, a repudiatory breach which MWP had no option but to accept. 304 In relation to remedies, the Arbitrators considered that the most appropriate and convenient course was to take accounts as if the parties were partners and their partnership was dissolved as at 31 December 2005 (para 8.21). 305 Importantly, they declared themselves satisfied that those of MWP's client like Sokol, who had previously instructed Mr Emmott while he was at MWP and followed him to TIL would not have stayed with MWP once Mr Emmott left. This was not merely because they wanted Mr Emmott to do their work: they positively did not want Mr Wilson to have anything to do with it. The Arbitrators explained: if Mr Emmott had retired to England, those clients would have taken their work from MWP to another Kazakhstan firm. Accordingly, so the Arbitrators concluded (para 8.22), MWP was not entitled to either equitable compensation or damages in respect of the loss of those clients to TIL. At para 8.22, the Arbitrators added: Temujin has been found liable in damages by the Australian Court, and if Mr Emmott is a partner in that firm (as to which we have insufficient evidence to form an opinion) he will be liable jointly and severally for Temujin's debt. 306 The finding that MWP suffered no loss as a result of Mr Emmott's breaches in relation to "Mr Emmott's clients" has proved to be important. First, by far the more substantial part of MWP's claim related to those clients (see [292] above). Those clients were Mr Sinclair, Mr Schoonbrood and the various corporate entities associated with them. The other clients, Kangamiut and Lancaster, generated comparatively little in fees. 307 Second, MWP contends that by confining the hearing before them to liability only and not quantum, the Arbitrators made it impermissible for themselves to consider causation of loss. Responding to this suggestion, in their Clarification dated 6 April 2010 the Arbitrators stated that proof of the suffering of some loss is an essential element in obtaining an order for damages to be assessed or an inquiry as to damages. 308 The Arbitrators' conclusion adverse to MWP on causation of loss led MWP to commence a proceeding in the High Court of Justice on 22 March 2010 challenging the Award. By its "Claim form (arbitration)" MWP seeks an order under s 68 of the Arbitration Act 1996 (UK) for remission of the Award to the Arbitrators for reconsideration, and leave to appeal on a question of law under s 69 of that Act. 309 The Arbitrators ordered inquiries as to the value of the loss of opportunity to MWP to obtain instructions from Kangamiut and from Lancaster. The Arbitrators found that in each case the initial contact by the prospective client was with MWP but that the instructions were "intercepted", in the case of Kangamiut by Mr Slater and in the case of Lancaster by Mr Emmott or Mr Nicholls or both of them, and diverted to TIL. 310 By their Seventeenth Procedural Order the Arbitrators ordered: 1. That inquiries be carried out and accounts be taken namely: a. into the value of MWP at 31 December 2005, such inquiry to exclude taking into account any entitlement on the part of MWP to recover commissions or other payments received by Mr Emmott and for which he had not accounted at 31 December 20015; b. into the value of Mr Emmott's 33% interest in MWP after appropriate adjustment for the element of value attributed to MWP's ownership of the Steppe Shares (as defined in the Second Award) as between Mr Wilson and Mr Emmott (see Sections 7.12 and 7.13 of the Second Award; c. into what sums, if any, were due to Mr Emmott from MWP (or from Mr Emmott to MWP) having regard to Mr Emmott's 33% profit share to 31 December 2005, less his drawings against that profit share, and after taking into account MWP's retention of £225,000 of profits as explained in section 3 of the Second Award and as provided for in cl 2.2.1 of the Emmott Agreement (as defined in the Second Award) (" Mr Emmott's current account "); d. into the value of the loss of opportunity for MWP to obtain the instructions of Kangamiut Seafoods (see Section 4.178 of the Second Award), and the date upon which such loss was accrued; e. into the value of the loss of opportunity for MWP to obtain the instructions of Lancaster Group Kazakhstan (see Section 4.181 of the Second Award) and the date upon which such loss accrued; 2. That the following accounts be taken: (i) of all commissions, secret profits or other sums received by Mr Emmott from Richards Butler (as explained in Section 4.29 of the Second Award); (ii) of all commissions, fees and other sums received by Mr Emmott from ICH [ a reference to Innovative Creative Holdings LV ] and of all disbursements made by him out of such receipts (as explained in Section 4.69 of the Second Award); and (iii) of all commissions, fees or other sums received by Mr Emmott from Temujin (as defined in the Second Award) before 1 July 2006. 311 There were consequential orders for payments by MWP to Mr Emmott and by Mr Emmott to MWP and for a set off, with the balance either way to be paid forthwith. 312 The Arbitrators dismissed a claim by MWP in relation to 14.75 million shares in Max Petroleum plc. They found that those shares were held by the trustee of Mr Emmott's Bahamian trusts to the order of Mr Sinclair. 313 Finally, the Arbitrators said that it was unnecessary to decide whether the relief granted was "equitable compensation for breach of trust or common law damages for breach of contract". On either footing, they said, damages needed to be assessed at the date of breach, as they had ordered. THE APPEAL AND CROSS APPEAL 314 The amended notice of appeal states 22 grounds of appeal divided into 12 groups, which may be summarised as follows: I the appellants were denied procedural fairness. There are numerous and diverse matters referred to in support of this ground including, for example, that over the appellants' objection the proceeding was listed for hearing and heard prior to the determination of the Arbitration; a refusal of the primary judge to recuse himself on the ground of reasonable apprehension of bias; and the existence in fact of a reasonable apprehension that his Honour was biased against the appellants (para 1 of grounds of appeal); II the primary judge failed to find that as a matter of public policy the Court should decline to grant any relief to MWP because of lack of territorial connection with New South Wales (para 2 of grounds of appeal); III his Honour misapplied principles of private international law relating to "choice of law" (para 3 of grounds of appeal); IV his Honour erred in declining to find that the proceeding constituted an abuse of process (para 4 of grounds of appeal); V his Honour failed to publish adequate reasons in support of his final orders (para 5 of grounds of appeal); VI his Honour failed to make certain findings that arose from the relationship between MWP as an entity carrying on a legal practice and its clients (paras 6-7 of grounds of appeal); VII in making certain findings in relation to the credit of Mr Wilson, his Honour failed to take into account certain evidence, and further made findings of credit in favour of Mr Wilson and against Messrs Emmott, Nicholls and Slater that were not justified by, and were inconsistent with, the objective evidence (paras 8-9 of grounds of appeal); VIII the primary judge made numerous findings of fact that were not reasonably supported by evidence or were inconsistent with objective evidence (para 10 of grounds of appeal); IX the primary judge erred in finding that MWP had made out: an entitlement in equity referable to breaches of fiduciary duties and participation in breaches of such duties; causes of action in contract (against Mr Nicholls and Mr Slater); causes of action in tort for inducement of breach of contract (against all appellants); and causes of action in conspiracy to injure by unlawful means (against Mr Nicholls and Mr Slater) (paras 11-15 of grounds of appeal); X his Honour erred in his approach to remedies, such as by holding that if, contrary to the appellants' submission, the appellants were liable to MWP in damages at common law, the appellants could be held liable to pay equitable compensation in the same amount rather than being left to their remedy at law (paras 16-20 of grounds of appeal); XI his Honour erroneously admitted into evidence the evidence of Mr Schilling, erroneously applied that evidence and erroneously attributed probative value to it (para 21 of grounds of appeal); XII the orders under appeal cannot stand in the light of the Award (para 22 of grounds of appeal). 315 By its notice of cross-appeal, MWP challenges: A. his Honour's assessment of equitable compensation and common law damages in relation to the shares in Sunkar and the Chilisai Phosphate transaction (his Honour assessed $4,000,000 and MWP contends that the amount should have been 5% of the total market capitalisation of Sunkar of £191.8 million, ie that £9,590,000 should have been awarded as equitable compensation and common law damages); B. his Honour's dismissal of MWP's claim in respect of the of the Urals Gold/Benkala Copper Project (MWP contends that an amount of 5% of the value of the project namely US$250 million, that is, US$12.5 million, should have been awarded as equitable compensation and common law damages); C. his Honour's dismissal of MWP's claim in respect of a second group of oilfields that were acquired by Roxi (the Roxi II project) which concerned the readmission of Roxi to the AIM and the ADA and Eragon transactions (according to MWP, his Honour should have held that it was entitled to elect between an account of profits and equitable compensation in relation to the ADA and Eragon transactions pursuant to which there were: (i) project management fees of US$1 million paid in accordance with the ADA and Eragon Agreements of 1 October 2007; and (ii) success fees of US$11.5 million (taken as shares issued) pursuant to the Eragon Agreement of 1 October 2007 and US$17.5 million pursuant to the ADA Agreement (or substitute) of 1 October 2007). GROUNDS OF APPEAL 316 Where there is an appeal on the ground of bias or reasonable apprehension of bias, that ground should be dealt with first. If upheld, it undermines the trial and the remedy must be a retrial, irrespective of the result on other grounds of appeal: see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [1] – [3] per Gummow A-CJ, [117] per Kirby and Crennan JJ. Where that ground is sustained, it is important that the appellate court should say nothing in relation to the other grounds of appeal that may cause embarrassment on the re-trial. The findings to be made as to credit and facts are exclusively a matter for the Judge presiding at the new trial on the evidence then placed before the Court. I DENIAL OF PROCEDURAL FAIRNESS – REASONABLE APPREHENSION OF BIAS (para 1 of grounds of appeal). 317 I agree with Basten JA's reasons at [2] – [95]. II LACK OF TERRITORIAL CONNECTION (para 2 of grounds of appeal) 318 I agree with Basten JA's reasons at [98]. III CHOICE OF LAW (para 3 of grounds of appeal) 319 The third ground of appeal is that in various ways his Honour misapplied the principles of private international law relating to "choice of law". In relation to all of MWP's claims the primary Judge applied the law of New South Wales. Wrongly imposing on the appellants the onus of proving the identity and content of applicable foreign law (ground of appeal 3(a)) 320 His Honour addressed the question of the law that he was to apply at [303] – [364]. He discussed expert evidence on the law of the Republic of Kazakhstan at [318] – [341]. It is wrong to say, as ground of appeal 3(e) asserts, that his Honour failed to have regard to any system of law other than Australian law. That ground correctly asserts, however, that his Honour did not apply any other system of law. 321 In Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 (Neilson), Gummow and Hayne JJ observed (at [115]): The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. 322 Their Honours referred to "the well-known rule that, absent proof of, or agreement about, foreign law, the law of the forum is to be applied" (at [116]). This is commonly referred to as a "presumption" that where foreign law on a question is to be applied under the choice of law rules of the forum, the foreign law to be applied is the same as the law of the forum. The primary Judge cited numerous authorities for this familiar principle (at [313]). (The learned authors of the eighth edition of Nygh's Conflict of Laws in Australia propose the description "default rule" as preferable to that of "presumption" (at [17.37]).) 323 It follows that the onus is on a party asserting that foreign law is applicable and is different from the law of the forum to plead and prove those matters, including what that foreign law is, and that MWP was entitled to rely on the presumption that the law of the forum would be applied unless the appellants pleaded and proved both the applicability and the content of the relevant part of foreign law: see Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 (Zhang) at [70] – [71] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Dyno Wesfarmers Limited v Knuckey [2003] NSWCA 375 per Young CJ in Eq at [49] – [56]; and see Neilson at [125] per Gummow and Hayne JJ. 324 When the case opened before the primary judge the appellants had not pleaded that foreign law applied, let alone what that foreign law was. They sought leave to amend their Commercial List Response and were eventually granted leave to do so with the result that para 87 of the Commercial List Response was introduced reading as follows: Further and alternatively, and in answer to the whole of the Plaintiff's Commercial List Statement, the Defendants say that such, if any, entitlements that the Plaintiff might have in these proceedings must be determined by the law of Kazakhstan as the law governing (a) any contract of employment made between the Plaintiff and the First and Second Defendants respectively; and (b) the conduct of business in Kazakhstan. Particulars Further particulars were provided in the letter from Henry Davis York to Clayton Utz dated 26 June 2009. 325 The text of para 87 pleaded only that by the choice of law rules of the forum, "the law of Kazakhstan" was to be applied by the Court in the two respects mentioned. The text did not identify what the relevant content of that law was. 326 The letter dated 26 June 2009 from Henry Davis York to Clayton Utz referred to in the particulars did not do so either. In particular it did not specify any supposedly applicable principles of Kazakhstan law that were different from the law of New South Wales. Rather, it discussed general principles governing the choice of a foreign legal system, that of Kazakhstan, as providing the law governing MWP's claims in contract, tort and equity. The letter concluded by noting the appellants' contention that MWP bore "the onus of proving its entitlement to relief, including all questions associated with an application of the choice of law rules" and asserted: "The Defendants bear no onus of proof". 327 The position taken in the letter has been maintained. The appellants submit that MWP "bore the onus of proving the whole of its claims for relief, including any applicable foreign law" and that MWP "was not entitled to rely upon any presumption that foreign law was the same as NSW law" While MWP bore the onus of establishing its entitlement to relief, I do not agree that MWP was not entitled to rely on the presumption: it was. 328 The appellants rely upon Damberg v Damberg (2001) 52 NSWLR 492 (Damberg). Damberg was decided before the High Court gave its decisions in Zhang and Neilson. I have referred above to the reasons of Gummow and Hayne JJ in Neilson. In addition, Callinan J in that case said (at [249]) that in the absence of relevant evidence of the Chinese approach to statutory construction, it was right to presume that the Chinese principles of statutory construction were the same as the Australian ones and to use the latter. His Honour said that this approach was consistent with authority in which English law has been applied to resolve questions involving foreign law in the absence of any or sufficient evidence of the foreign law, which must, in the usual case, be pleaded and proved as a fact. Like Gummow and Hayne JJ, his Honour cited Lloyd v Guibert (1865) LR 1 QB 115 at 129, where Willes J, for the Court of Exchequer Chamber, stated: In order to preclude all misapprehension, it may be well to add, that a party, who relies upon a right or an exemption by foreign law, is bound to bring such law properly before the Court, and to establish it in proof. Otherwise the Court, not being entitled to notice such law without judicial proof, must proceed according to the law of England … 329 Heydon J, who, as Heydon JA, had delivered the reasons of this Court in Damberg, accepted (at [267]) the reasons given by Gummow and Hayne JJ and by Callinan J for the proposition that in the absence of evidence of the principles of statutory construction that were applied in China, it was appropriate to employ those that were applied in Australia. 330 Damberg was concerned with the law relating to the avoidance or evasion of capital gains tax. A man placed properties in the names of his son and daughter to avoid German capital gains tax; the properties were sold; capital gains tax was avoided as intended; the children paid the proceeds to their father or to their parents. The father contended that the children held the properties on a constructive trust for him. The trial Judge found that while the presumption of advancement operating between father and child was rebutted, in view of the father's purpose (achieved) of avoiding German capital gains tax, and the fact that the Court should do what it could to avoid the violation of the revenue laws of a friendly foreign country, the Court should treat the transactions as gifts of the properties to the children. Accordingly, the children succeeded in having the payments that they had made of the proceeds of sale treated as loans. 331 It was not proved what the German law on capital gains tax was and the question was whether the Australian law on the subject should be applied. Heydon JA, with whom Spigelman CJ and Sheller JA agreed, considered that it should not be presumed that German law on capital gains tax was the same as the Australian law on that subject. His Honour said (at [162] – [163]): German law on the point must be statutory. German law is not a common law-based system. According to the children, the conduct of the husband was criminal and fraudulent: whether it was criminal depends on the terms of legislation, and whether any fraud had relevant consequences depends on the terms of the legislation also. There is a risk that there may be special machinery and highly individual provisions in German law as there are in Australian tax law: indeed the only evidence of German law, from Mr Stiegler, suggests that it is quite different from Australian law. Taxation law cannot be assumed to be a field resting on great and broad principles likely to be part of any given legal system. Beyond those considerations, however, there is a decisive factor. The resistance of the children to the resulting trusts which the trial judge found depends on showing some aspect of German law defeating those resulting trusts. They appeal to Nelson v Nelson [(1995) 184 CLR 538] . The High Court majority in Nelson v Nelson called for a close analysis of the relevant German statutory provisions. To substitute for an analysis of relevant German statutory provisions an analysis of irrelevant Australian statutory provisions is simply to fail to carry out the mandate of Nelson v Nelson . 332 The decision in Damberg is not inconsistent with the High Court's later pronouncements in Zhang and Neilson. This is not only because in Nelson v Nelson in circumstances materially similar to those in Damberg, the majority held that refusal to enforce the constructive trust on the ground of illegality of purpose depended upon public policy derived from the statute. In Damberg the law in question consisted of particular statutory provisions dealing with avoidance or evasion of capital gains tax, and there was therefore reason to think that the foreign law was not the same as the Australian law. Heydon JA's remark that taxation law cannot be assumed to be a field "resting on great and broad principles likely to be part of any given legal system" is important. 333 Heydon J did not perceive any inconsistency. As a member of the Court in Neilson, he stated (at [267]): The general correctness of that approach (pursuant to which the relevant foreign law is assumed to be the same as the lex fori if there is no, or only incomplete, proof of the foreign law) has been questioned [his Honour cited Fentiman, Foreign Law in English Courts (1998) pp 149-156], but no argument adverse to its general correctness was advanced in this appeal, and it was described by the respondents as "trite". The only relevant argument was that that approach should not be permitted to result in the plaintiff's success, for that would destroy, by a side-wind, the requirement that only the domestic lex loci delicti be applied. For reasons given below, there is not, in the present case, any requirement of that kind. Further, this Court in [Zhang] said nothing about the approach in question . 334 The present case concerned claims of breach of contract, torts of inducing breach of contract and conspiracy to injure, and claims of breach of fiduciary duty and Barnes v Addy liability associated with breach of fiduciary duty. I do not think that Damberg stands in the way of the presumption required by Zhang and Neilson in relation to such a "field resting on broad principles likely to be part of any given legal system". 335 In the result, his Honour did not err in treating the appellants as bearing the onus of proving the identity and content of particular foreign law applicable. Failure to find that the law governing the contracts of employment between MWP and Messrs the Nicholls and Slater was the law of Kazakhstan (ground of appeal 3(b)) 336 In Akai Pty Limited v People's Insurance Co Ltd [1996] HCA 39; 188 CLR 418 (Akai), Toohey, Gaudron and Gummow JJ confirmed the approach adopted by Lord Diplock in Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 at 51 to the effect that the primary way of identifying the proper law of a contract is to ascertain the parties' intention as to the system of law that is to govern their contract, and that if they have revealed no such intention the Court will fix on that system of law with which the contract has its "closest and most real connection". By reference to the principle recognised in Akai and to several matters to which he referred as indications of the contracting parties' intention, the primary Judge considered that the parties had chosen the law of New South Wales to govern their respective contractual relationships (at [352] – [359]). If that conclusion was incorrect, his Honour thought that each contract of employment had its "closest and most real connection" with the law of New South Wales (at [360] – [363]). These were findings of fact, which may or may not be replicated on the evidence before the Court when the proceeding is re-heard. 337 The appellants contend that his Honour should have found that the proper law of the contracts of employment was the law of Kazakhstan. But such a finding would not require that they succeed on this ground of appeal unless they had also proved that Kazakhstan's law of contract was relevantly different from the law of contract of New South Wales. In the absence of such proof, the presumption that the two are the same operated (see above). Failure to find that MWP's claims in tort were governed by the law of Kazakhstan (ground of appeal 3(c)) 338 In relation to MWP's claims of inducing breach of contract and conspiracy to injure, the presumption referred to above also applied. Failure to find that subject to s 7 of Foreign Corporations (Application of Laws) Act 1989 (Cth), MWP's claims for equitable relief were to be determined by the law of Kazakhstan (ground of appeal 3(d)) 339 I reject the appellants' submission that MWP's equitable claims were to be characterised as "tort" claims for the purpose of the Australian choice of law principles, although in accordance with [338] above the result would be no different if they were. 340 In National Commercial Bank v Wimborne (1978) 5 BPR [97423] Holland J stated (at 11,982): In my opinion it is, prima facie, a complete answer to this contention [that Swiss law exclusively determined the rights of the parties] that the plaintiffs are claiming equitable rights and equitable remedies. The Equity Court has long taken the view that because it is a Court of conscience and acts in personam, it has jurisdiction over persons within or subject to its jurisdiction to require them to act in accordance with the principles of equity administered by the court wherever the subject matter and whether or not it is possible for the court to make orders in rem in the particular matter. In short, if the defendant is here, the equities arising from a transaction to which he is a party as ascertained by New South Wales law and the equitable remedies provided by that law will be applied to him. The Equity Court determines according to its own law whether an equity exists, its nature and the remedy applicable. … This approach may be considered as the " lex fori only" approach. 341 In United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766, McLelland J referred to the above passage from the judgment of Holland J and said (at 796-797): In some circumstances a court of equity will apply equitable principles as administered by itself to found relief against a defendant subject to its jurisdiction in relation to a transaction governed by foreign law, even if similar principles form no part of that foreign law: see Cranstown (Lord) v Johnston (1796) 3 Ves 170; 30 ER 952; Ex parte Holthausen; Re Scheibler (1874) LR 9 Ch App 722. 342 In so far as MWP's claims raised questions of the existence and nature of fiduciary obligations and the remedies available for breach of them, Murakami v Wiryadi [2010] NSWCA 7 (Murakami) is authority for the proposition that those questions were to be resolved by the application of the law of New South Wales. 343 In Murakami, Spigelman CJ, with whom McColl JA and Young JA agreed, considered (at [131]) that the position with respect to fiduciary claims was as stated in the joint judgment of the Full Federal Court in Paramasivam v Flynn (1998) 90 FCR 489 (Paramasivam). The Full Court's starting point was a recognition that where a court of equity had been prepared to assume personal jurisdiction over parties, it had applied its own principles, not foreign law, to determine whether a personal equity existed between them. The Full Court recognised exceptions, such as the exception that might arise where the source of the fiduciary obligation was a contract governed by law other than the law of the forum (at 503B). That is not the present case for reasons mentioned earlier. The Full Court also acknowledged (at 503F) that: … where the circumstances giving rise to the asserted duty or the impugned conduct (or some of it) occurred outside the jurisdiction, the attitude of the law of the place where the circumstances arose or the conduct was undertaken is likely to be an important aspect of the factual circumstances by reference to which the Court determines whether a fiduciary relationship existed and, if so, the scope and content of the duties to which it gave rise. 344 In Murakami, Spigelman CJ discussed "Choice of Law and Equitable Claims" at [128] – [149]. The Chief Justice drew attention to a different "choice of law" starting point supported by Professor T M Yeo in his book, Choice of Law for Equitable Doctrines (OUP, 2004) esp at [Intr 010 – 013], [Intr 020 – 021], [1.01] – [1.13], [2.10] – [2.17], and [8.17]. However, the Chief Justice also directed attention to the Foreword to that book, in which Justice Gummow wrote (at vi) that the question whether an equity exists in the plaintiff founded on the precepts and principles that inform the defendant's conscience is not to be determined by a consideration of foreign law, despite connections with foreign legal systems. 345 In Rickshaw Investments Ltd v Baron von Uexhell [2007] 3 LRC 223, [2006] SGCA 39, the Court of Appeal of the Supreme Court of Singapore, while agreeing with Professor Yeo that the "lex fori only" approach should not be maintained, accepted (at [81]) that in a case where equitable duties arose "from a factual matrix where the legal foundation is premised on an independent established category such as contract or tort, the appropriate principle in so far as the choice of law is concerned ought to be centred on the established category concerned." 346 According to the primary Judge's finding of fact the proper law of the two contracts of employment was the law of New South Wales. Consistently with that finding of fact there was no occasion for an exception to be made to the lex fori only principle. Failure to determine whether Mr Emmott breached obligations as an officer or member of MWP by applying or having regard to a non-Australian system of law as required by the Foreign Corporations (Application of Laws) Act 1989 (Cth), s 7 (ground of appeal 3(e)) 347 The Foreign Corporations (Application of Laws) Act 1989 (Cth) (No 183 of 1989) provides in s 7 relevantly as follows: (1) The section applies in relation to the determination of a question arising under Australian law (including a question arising in a proceeding in an Australian court) where it is necessary to determine the question by reference to a system of law other than Australian law. (2) Any question relating to whether a body or person has been validly incorporated in a place outside Australia is to be determined by reference to the law applied by the people in that place. (3) Any question relating to: … (e) the rights and liabilities of the members or officers of a foreign corporation, or the shareholders of a foreign corporation having a share capital, in relation to the corporation; or … is to be determined by reference to the law applied by the people in the place in which the foreign corporation was incorporated . 348 The expression "Australian law" is defined in s 3 of the Act to mean a law in force throughout Australia or a law of, or in force in, a part of Australia, and as including the rules or principles of the common law and equity as so in force. The expression "officer" is defined in the same section in relation to a foreign corporation to include "a director, secretary, executive officer, agent or employee of the foreign corporation". 349 The appellants submit that s 7 required his Honour to determine whether Mr Emmott was in breach of obligations to MWP by reference to the law of the British Virgin Islands, being the place where MWP was incorporated. 350 In written submissions, the appellants contend that s 7 also applied to the question of the liability of each of Messrs Nicholls and Slater, but the amended notice of appeal relates to the liability of Mr Emmott alone. The positions of Messrs Nicholls and Slater may therefore be put to one side although, as will be clear below, the result in relation to them would be no different. 351 The Third Further Amended Commercial List Statement (TFACLS) asserted in para 25 that by reason of, inter alia, Mr Emmott's position as director of MWP, he was in a fiduciary relationship with MWP and owed to MWP fiduciary duties under the laws of England and Wales. No doubt the reference to the laws of England and Wales is explained by the governing law provision contained in cl 5.2 of the Emmott Agreement. In their Commercial List Response, the appellants stated that they did not admit the matters alleged in para 25. 352 It is difficult to understand what the appellants seek to derive from the present ground of appeal. In their Rule 51.36(2) Schedule they complain (para 3) that his Honour erred by finding that the relationship between MWP and Mr Emmott was principally one of employment rather than one of quasi-partnership. But a "quasi-partner", the status which the appellants prefer to attribute to Mr Emmott, is not within the definition of "officer" in s 3 of the Act. 353 It will be recalled that cl 1.1 of the Emmott Agreement provided that the parties agreed that Mr Emmott would "join MWP, as a director and shareholder with effect from 7 January 2002 in accordance with the terms set out in [the Emmott] Agreement", and that cl 2.2 provided that Mr Emmott was to "become a director of MWP, with a thirty three percent (33%) profit-sharing interest, which shall be earned as [set out in the paragraphs that followed]". 354 Paragraph 25 of the TFACLS pleaded that Mr Emmott was a fiduciary by reason of: the terms of the Emmott Agreement; Mr Emmott's position as a senior lawyer and director of MWP; or the high degree of trust placed in Mr Emmott by MWP. 355 Clause 1.4 of the Emmott Agreement (set out at [215] above) inevitably gave rise to fiduciary obligations on the part of Mr Emmott as a quasi-partner. 356 The appellants' submissions do not suggest that the pleaded claim or his Honour's finding was that Mr Emmott was liable as an officer or member as distinct from as a quasi-partner, or that his fiduciary obligations as a quasi-partner were less extensive than those incumbent upon him as an officer. Even if the pleading and his Honour's finding were that the fiduciary obligations arose exclusively from Mr Emmott's position as a director of MWP, I do not think that the result would have been different. 357 The answer to the appellants' submission is simply that it was not "necessary" to determine a question relating to Mr Emmott's liability by reference to a legal system of law other than Australian law within the meaning of subs (1) of s 7 and that for this reason s 7 had no application. 358 Just how far removed the circumstances of the present case are from those to which the Act was directed can be seen by reference to the Second Reading Speech of Senator Robert Ray, the Minister for Immigration, Local Government and Ethnic Affairs, on the Foreign Corporations (Application of Laws) Bill 1989 (Parl Debs, Senate, p 4987, 21 December 1989) in which the Minister said: 1 The Australian Government recently looked at the legal position of companies incorporated abroad which do business in Australia, whether through a branch, local subsidiary or otherwise. One finding was that an Australian court may be called upon to make a decision on a dispute involving such companies by referring to foreign laws, and may well find itself in a situation where it has to choose between conflicting laws of two or more foreign jurisdictions. For example, the court may have to address such questions as the validity of the incorporation of a foreign company, the ownership of shares of such a company or, more generally, the rights and obligations of a foreign company. 2. As a result of the examination, the Government concluded that in some circumstances there were no clear and predictable statutory rules which would overcome the uncertainties relating to claims of corporations of unrecognised states and governments. 3. It is the policy of the Australian Government to encourage foreign investment which it judges to be in the national interest. The Government wishes to ensure that investors can make important decisions in the confidence that their legal rights in Australia will not be adversely affected by extraneous considerations such as the legal status of the territory in which their business is incorporated. 4. The Australian legal system clearly meets this objective in most cases and obviously provides impartial legal services of high quality. However, it has become apparent that the traditional common law approach to the position of foreign corporations under Australian law may not, in some cases, adequately take account of the changes in the international trading system and foreign investment patterns in Australia. 5. Within Australia, there are now corporate entities from diverse political and legal systems and with various ownership arrangements. The sums involved in investment are often large and it is understandable that in such circumstances investors require certainty as to their legal status. In some countries, for example the United States, the courts have clarified the legal status of companies incorporated in unrecognised entities. However this is not the case in Australia and the approach an Australian court would take in dealing with a case involving the rights of foreign corporations from some parts of the world remains unclear. 6. This Bill seeks to address these issues. It deals in general terms with the situation where an Australian court has to determine the legal rights of a foreign corporation by reference to foreign law. Thus, when the ordinary rules of private international law require that rights of a foreign company be determined by reference to a foreign law, the Bill will ensure that the law to be applied will be determined by the place of incorporation of the company, without regard to the political circumstances, questions of official recognition or otherwise of the government authorities there, or the legal status of the place of incorporation. 7. The Bill's approach takes into account the Government's change in recognition policy announced by the then Minister for Foreign Affairs and Trade on 19 January 1988. Under that policy, Australia no longer takes a position on the recognition or non-recognition of particular governments. Australia recognises states only. 8. The government considers that it would now be appropriate to provide for protection of the legal rights of companies incorporated in unrecognised entities. Australian courts, when confronted with cases in which foreign relations questions are raised, traditionally have attached considerable importance to the attitude of the executive government. The Australian Government's view is that as a matter of public policy, the foreign relations considerations should not normally be the overriding factor in the determination of private legal rights, particularly those involving commercial transactions. The Government considers that Australia's public policy interests can be preserved on the one hand, while on the other hand normal commercial relations between private parties can be determined by reference, where relevant, to the law in fact in operation in the place of incorporation. 359 Sub-sections (2) and (3) of s 7 of the Act fulfil the function of identifying which system of law other than Australian law is to apply where it is necessary to determine a question arising under Australian law, including a question arising in an Australian Court proceeding, by reference to a non-Australian system of law. Those sub-sections identify the law applicable in the place where the foreign corporation is incorporated as the law to be applied where the question to be determined is any of the questions identified in the sub-sections. The sub-sections presuppose, however, satisfaction of subs (1). Subsection (1) is not satisfied in the present case. 360 MWP also submits that the present ground of appeal should not be sustained because of the operation of r14.14(2) of the Uniform Civil Procedure Rules. That rule provides that: In a defence or subsequent pleading, a party must plead specifically any matter: (a) that, if not pleaded specially, may take the opposite party by surprise, or (b) that the party alleges makes any claim, … or other case of the opposite party not maintainable, or (c) that raises matters of fact not arising out of the preceding pleading. 361 On the tenth day of the hearing at first instance the appellants raised for the first time the application of s 7. Senior Counsel for MWP indicated that MWP opposed an amendment to raise the section in the absence of particulars. Subsequently, his Honour disallowed the amendment for lack of particulars, while preserving the appellants' right to argue that s 7 operated of its own force and that a pleading of the provision was not required. 362 MWP submits that s 7 is a procedural or evidentiary provision and that in the absence of a pleading specifying the particular liability of Mr Emmott as a member or officer of MWP to which the foreign law was to apply and identification of that law, the appellants were not entitled to rely on s 7. 363 The present issue need not be resolved because, as noted above, subs (1) was not satisfied and ground of appeal 3(e) fails for that reason. My tentative view, however, is that if it had been satisfied, observance of sub-sections (2) and (3) of that section would have been mandatory. Failure to hold that MWP bore the onus of proving its entitlement to relief, including the onus on all questions of the applicable law (ground of appeal 3(f)) 364 It is unnecessary to say anything in relation to this ground beyond what is said in relation to other grounds, in particular, grounds 3(a) and 3(e). Failure to hold that on the evidence, in particular that of Professor Butler, MWP had under Kazakhstan law no entitlement to relief against appellants beyond nominal compensation (ground of appeal 3(g)) 365 This ground of appeal is as follows: 3. The Primary Judge misapplied principles of private international law relating to "choice of law" in that: … g. he ought to have held that, on the evidence before the Court (including the evidence of Professor Butler) as to the nature, content and application of the law of Kazakhstan, the Respondent had no entitlement to relief against the Appellants greater than nominal compensation. 366 This ground complains of a failure to make a finding of fact. The question of the findings of fact to be made will be a matter for the Judge who presides at the further hearing to take place on the evidence then before the Court. Erroneously holding that his Honour could, apparently as a matter of discretion, apply the law of New South Wales without consideration what (if any) entitlements MWP had under the law of Kazakhstan or any other system of law (ground of appeal 3(h)) 367 This ground complains that his Honour chose to apply New South Wales law in the exercise of a discretion "for the purpose of doing justice between the parties" without consideration of what (if any) entitlements MWP had under the law of Kazakhstan or under any other system of law. 368 It is sufficient to say that I do not read his Honour's reasons in that way. IV ABUSE OF PROCESS (para 4 of the grounds of appeal) 369 I deal with the Arbitration aspect of this ground below. As well, I agree with Basten JA at [99] – [109]. V FAILURE TO PUBLISH ADEQUATE REASONS IN SUPPORT OF FINAL ORDERS (para 5 of grounds of appeal) 370 In view of the Court's remission of the proceeding for re-hearing, it is not necessary or appropriate that this ground of appeal be addressed. Moreover, the complaint that his Honour failed to publish adequate reasons in support of his determination that "equitable compensation" of $4 million should be awarded becomes otiose in view of the discussion of the question of that award by Young JA at [178] ff. VI FAILURE TO MAKE FINDINGS ARISING FROM MWP'S CARRYING ON A LEGAL PRACTICE (paras 6 and 7 of grounds of appeal) 371 This ground complains of a failure to make findings. It need not be dealt with beyond what has been said in relation to other grounds, having regard to the remission for re-hearing. VII CREDIT FINDINGS (paras 8 and 9 of grounds of appeal) VIII FINDINGS OF FACT NOT SUPPORTED BY EVIDENCE OR INCONSISTENT EVIDENCE (para 10 of grounds of appeal) IX FAILURE TO MAKE OUT ENTITLEMENTS AND CAUSES OF ACTION (paras 11 – 15 of grounds of appeal) 372 In view of the remission for re-hearing it is not necessary or appropriate for the Court to deal with these three grounds which depend on credit and fact finding – peculiarly matters for the Judge presiding at the re-hearing, X REMEDIES (paras 16-20 of grounds of appeal) 373 I agree with what Young JA has said in relation to these grounds of appeal. XI ERRONEOUS ADMISSION OF MR SCHILLING'S EVIDENCE AND ERRONEOUS APPLICATION OF, AND ATTRIBUTION OF PROBATIVE VALUE TO, THAT EVIDENCE (para 21 of grounds of appeal) 374 In view of the remission for re-hearing, it not necessary or appropriate for the Court to deal with this ground which depends on credit and fact-finding – peculiarly matters for the Judge who will preside over the re-hearing. XII THE ARBITRATION AND THE MOTIONS FOR ADDITIONAL EVIDENCE TO BE RECEIVED General 375 As noted earlier, the Arbitrators delivered the Award on 22 February 2010, made consequential orders on 24 March 2010, and issued a "Clarification" on 6 April 2010. The Clarification was issued in response to letters dated 19 and 22 March 2010 to the Arbitrators from Holman Fenwick Willan, the London solicitors for MWP. 376 The appellants filed a notice of motion on 11 June 2010 seeking an order under sub ss (5), (7) and (9) of s 75A of the Supreme Court Act 1970 (NSW) that the Court receive those documents as additional evidence on the hearing of the appeal. 377 By a responsive notice of motion filed on 18 June 2010, MWP sought an order that para 22 of the amended notice of appeal be "struck out", or, in the alternative, an order that MWP have leave to rely on four documents in response to the documents to be tendered by the appellants. 378 By an amended notice of motion filed on 23 June 2010, the appellants sought leave to put into evidence on the appeal an additional document, namely, an order made by the United States District Court for the District of Colorado (the Colorado Court), dated 8 June 2010 on an application by MWP for judicial assistance under 28 USC § 1782 (the Colorado Proceeding). The Colorado Proceeding was brought against Sokol and Frontier and perhaps also Mr Sinclair and Brian Savage. As noted earlier, Sokol and Frontier were companies associated with Mr Sinclair. The order dismissed an application by MWP for an order that Sokol, Frontier, Mr Sinclair and Mr Savage should show cause why they should not be held in contempt of court. Moreover, the order called upon MWP to show cause on 14 July 2010 why it should not itself be held in contempt of court. 379 On the hearing of the appeal, MWP tendered the order made in the Colorado Proceeding on 14 July 2010 to the effect that the Colorado Court was satisfied that MWP was not in contempt of court. 380 An amended notice of motion filed by MWP on 14 July 2010 amended the primary order sought by MWP to an order that the ground of appeal in para 22 be "dismissed", and in the alternative, sought leave to rely on eight documents in addition to the four that had been identified in the notice of motion. 381 Subsections (5) to (10) of s 75A of the Supreme Court Act 1970 (NSW) provides in relation to appeals such as the present one: (5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) …, (b) the drawing of inferences and the making of findings of fact, and (c) …. . (7) The Court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds. (9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing. (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction … which the nature of the case requires. 382 The documents the subject of both notices of motion constitute "fresh evidence", that is to say, evidence concerning matters occurring after the hearing at first instance. Therefore the "special grounds" condition of sub s (8) does not apply: see sub r (9). 383 Sub-sections (5) and (10) of s 75A make it clear that the Court of Appeal may admit the fresh documentary evidence and may decide the appeal on the basis of the law and the evidence as they exist at the time of the appeal; cf New Brunswick Railway Co v British and French Trust Corporation [1939] AC 1 at 32 – 33; Edwards v Noble (1971) 125 CLR 296 at 304 per Barwick CJ; CDJ v VAJ [1998] HCA 67 and 76; 197 CLR 172 at [102] (concerning the power of the Full Court of the Family Court of Australia to receive further evidence on appeal under s 93A(2) of the Family Law Act 1975 (Cth)). 384 Sub-sections (5), (7) and (10) as set out above are interrelated. In deciding whether to exercise the power under subs (10) to receive fresh evidence the Court must have regard to the nature of the appeal as a re-hearing (subs (5)) and may take into account its power under subs (10) to give any judgment or direction or make any order that the nature of the case requires as at the time of the hearing of the appeal: cf CDJ v VAJ. 385 The discretion to receive fresh evidence is not to be exercised according to a formula. Its exercise turns on questions of fact and degree in the individual case. 386 Relevance is a necessary condition, but not a sufficient one. The introduction of fresh evidence may give rise to intractable problems in appellant jurisdiction. For example, the fresh evidence may include oral testimony which will need to be weighed against the testimony of witnesses called at trial, who have not been heard by the appellate court. Factors other than relevance must therefore be taken into account in considering whether to admit fresh evidence. 387 On the hearing of the appeal the Court admitted all of the documents, the subject of both motions provisionally pending a final decision on their admissibility. As well, the Court admitted on the same basis the order of 14 July 2010 made by the Colorado Court. The Award 388 It was not suggested that the fate of the documents associated with the Award should differ from that of the Award itself, and I will refer to "the Award" as encompassing the associated documents. 389 Subject to the relevance of the Award, there are factors favouring its admission into evidence. First, the Award is documentary, its content is uncontroversial and admission of it does not require the Court of Appeal to resolve disputed questions of fact. Second, there is to be an order for a re-trial in any event and it is useful for this Court to decide whether, as the appellants contend, it is an abuse of process for MWP to pursue the appellants in respect of any claims that are inconsistent with the Award. Third, in the present respect the abuse of process ground raises only a question of law. 390 Accordingly, the Award should be admitted if it is relevant. 391 Subject to appeal (see below), the Award was final and binding as between MWP and Mr Emmott. MWP would be estopped from maintaining a claim in New South Wales against Mr Emmott inconsistent with it: Spencer, Bower and Handley, Res Judicata (4th Ed 2009) at [1.08] – [1.09]; Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich [2003] 1 WLR 1041 at 1047; Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [48]. 392 It is the law of the forum that would determine whether res judicata or issue estoppel would defeat MWP. In my opinion, it would not matter that cl 5.2 of the Emmott Agreement provided that that Agreement was governed by the laws of England and Wales and that any dispute was to be referred to arbitration in London. It was not suggested, and could hardly be suggested, that under the law of England and Wales an arbitration award is not final and binding subject only to the right of challenge under the Arbitration Act 1966 (UK). 393 The Award does not give rise to res judicata or issue estoppel as between MWP and the appellants because they were not parties to the Arbitration. The appellants submit, however, that the Award is relevant because to enforce the orders under appeal would be an abuse of the processes of the Court for two reasons a. any liability attaching to the Appellants is ancillary, or coordinate with, liability attributed by the Court to Mr Emmott for the purpose of making orders against the Appellants, and entitlements of Mr Emmott and the Respondent have been determined as between themselves in the arbitration. b. the Respondent must be taken to have received from Mr Emmott, by virtue of the Arbitration Award, satisfaction of any liability owed to the Respondent by Mr Emmott (eg, as a "co-conspirator" under the common law or in respect of a breach of fiduciary obligations in equity) in common with the Appellants. 394 It is, of course, the law of the forum that determines whether it is an abuse of the process of the forum for MWP to maintain and seek to enforce the judgment it has obtained against Messrs Nicholls and Slater in the light of the Award. 395 The conduct alleged in the TFASOC is not identical as between Messrs. Emmott, Nicholls and Slater. Of present relevance are the claims that Messrs. Nicholls and Slater knowingly participated and assisted in the breaches of contract by Mr Emmott (para 68); that TIL, TSL and TFZE knowingly participated and assisted in such breaches (para 69); that all three men unlawfully conspired to injure MWP (paras 72, 73); that TIL, TSL and TFZE joined in the conspiracy (para 78); and that each of Messrs Nicholls and Slater induced Mr Emmott to breach the Emmott Agreement (para 79A, 79B). 396 As noted above, his Honour declared that each of Mr Nicholls, Mr Slater, TSL, TIL and TFZE, for all of his or its various wrongs, was jointly and severally liability with the others of them to pay to MWP the same amounts of money. 397 Two aspects of the Award are of present importance. The first is the Arbitrators' finding of a lack of any causal link between Mr Emmott's wrongdoing and the suffering of any loss by MWP in respect of all clients except Kangamiut and Lancaster. The other aspect is the making of the order for a set off of amounts found to be payable by MWP to Mr Emmott against amounts found to be payable by Mr Emmott to MWP, including in the latter amounts payable for the loss to MWP of the opportunity to obtain the instructions of Kangamiut and Lancaster. These last two losses are also among the losses for which the appellants were held liable to compensate MWP by the primary Judge. 398 His Honour decided, inter alia, that Messrs Nicholls and Slater were liable to pay compensation to MWP for having knowingly participated in a breach by Mr Emmott of his fiduciary duty in relation to clients, including clients other than Kangamiut and Lancaster. The Arbitrators decided, however, that MWP suffered no loss as a result of his breaches in relation to "his" clients, and that MWP was not entitled to equitable compensation and damages in respect of the loss of those clients by MWP to TIL (see [305] – [307] above). In the light of the Award, it would be an abuse of process for MWP to seek to sustain and rely upon his Honour's findings and declarations of accessorial liability on the part of Messrs Nicholls and Slater and his orders based on them, in so far as they relate to "Mr Emmott's clients", that is to say the clients other than Kangamiut and Lancaster. 399 At the time of the determination of the appeal the Award is final and binding. At that time MWP is in the position of: • The Vicar of Sparsholt-cum-Kingston Lisle in Reichel v McGrath (1989) 14 App Cas 665, whose challenge to the validity of his resignation of his benefice had failed in Reichel v Bishop of Oxford (1889) 14 App Cas 259, but who attempted to challenge it again in his defence to an action by the new vicar for possession of the parsonage-house and glebe lands; • The plaintiff in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 against whom, on his claim for defamation, it was held that the pleaded imputation was incapable of being conveyed by the matter complained, but who then sought to proceed and plead as against different parties in respect of injurious falsehood and misleading or deceptive conduct, relying on substantially the same imputation; and • the purchasers of the business in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 who had failed in a claim against the vendor under s 52 of the Trade Practices Act 1974 (Cth) on the ground that they had not relied on the correctness of the figures in certain financial statements, and who then sued the accountants who had prepared those financial statements for negligent representations founded on the same figures. 400 In the criminal case Rogers v The Queen (1994) 181 CLR 251, Mason CJ at p 256, and in the civil case State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Torts Reports § 81-423 Giles CJ Comm D at p 64,089, identified two requirements of abuse of process in the "attempt to relitigate an issue" class of case: first, vexation, oppression and unfairness to the other party to the litigation; and second, the bringing of the administration of justice into disrepute. 401 In my opinion both requirements are met here as at the time of the hearing of the appeal. On the assumption that the Award is final and binding, it would be vexatious, oppressive and unfair to Messrs Nicholls and Slater, and it would bring the administration of justice into disrepute that they should continue to bear the accessorial liability described when the Arbitrators have concluded that the conduct of the principal, Mr Emmott, did not cause MWP any loss with the result that he, the principal is not liable. 402 I agree with Basten JA's conclusion at [106] that although the necessary steps could be taken now to remove the offending accessorial claims from the pleading, as a practical matter it is preferable to allow the proceeding initiated by MWP in the High Court of Justice in London to run its course before that step is required to be taken. 403 In relation to the set-off point, I agree with [107] and [108] of the reasons of Basten JA. The Colorado Proceeding documents 404 The appellants submit that the documents in the Colorado Proceeding are relevant as showing that the New South Wales proceeding was part of a world wide oppressive and vexatious campaign by MWP directed against Messrs Emmott, Nicholls and Slater, and was therefore an abuse of the process of the Supreme Court of New South Wales (cf ground of appeal IV (para 4 of grounds of appeal)). Whether this is so turns on findings of fact. His Honour's findings of fact will not survive the order for a retrial. Therefore the Colorado Proceeding documents have lost any relevance they may otherwise have had and should not be admitted. Those documents are not relevant to any ground remaining to be dealt with by us in the light of the Court's sustaining the first ground of appeal. CROSS APPEAL 405 The three grounds of cross appeal were referred to at [315] above. 406 All three turn on complaints about his Honour's findings of fact or an absence of particular findings of fact. In view of the result on the first ground of appeal, it is not necessary or appropriate for this Court to deal with the cross appeal beyond dismissing it (but not on the merits). CONCLUSION 407 For the above reasons I agree that the orders proposed by Basten JA should be made and that the following orders should be made on the motions for leave to adduce further evidence: (1) On the motion of the appellants, admit as further evidence pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) (a) the second interim award of the London Arbitrators made on 22 February 2010; (b) the 17th procedural order made by the London Arbitrators on 24 March 2010, and (c) the Clarification made by the London Arbitrators on 6 April 2010. (2) On the motion of the respondent, admit as further evidence pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) (a) bundle of documents constituting Exhibit JR1, and (b) bundle of documents constituting Exhibit JR2 each being exhibited to the affidavit of James Malcolm Robinson sworn 18 June 2010. ********** 05/10/2010 - Incorrect judgment date on coversheet - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.