Supreme Court New South Wales Medium Neutral Citation: Goritsas & Ors v Barakat & Ors [2012] NSWSC 36 Hearing dates: 16 December 2011, 1, 3 & 6 February 2012 Decision date: 06 February 2012 Jurisdiction: Common Law Before: Adams J Decision: Application dismissed. Catchwords: Application for disqualification - no questions of principle. Cases Cited: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 501; (2001) 4 VR 501 Category: Interlocutory applications Parties: Maria Goritsas (first plaintiff) Basil Goritsas (second plaintiff) Stephen Paul Firth (third plaintiff) Representation: R. Stitt QC & G.J. O'Mahoney (Plaintiffs) C. Branson QC & M. Castle (Defendants) Firths (Plaintiffs) Verekers Lawyers (Defendants) File Number(s): 2011/370116 Judgment 1This is an application by Tony Barakat, Russell Walter Keddie and Scott John Roulstone (the defendants) that I should disqualify myself from any further hearing of this litigation and related proceedings for contempt of court. The notice of motion was made on 16 December 2011. I made orders as to written submissions in the hope that I could prepare a judgment during vacation. Unfortunately, the submissions of Mr Stitt QC did not come to my attention until 1 February 2012. It was necessary to deal with the application before any other matters could be determined. I had already considered the question in light of the defendants' submissions and felt able to at least form a final view by 3 February after I had considered the submissions of the plaintiffs. I gave judgment on that day dismissing the application. Mr Branson SC sought a stay pending an application for leave to appeal to the Court of Appeal. I refused a stay but granted an adjournment undertaking that I would provide my reasons by today. I had hoped to complete them this morning but unfortunately other duties prevented early completion. I apologize if these reasons do not give ample justice to the submissions made on both sides. However, I am satisfied that they clearly explain why I dismissed the defendants' application. 2On 18 November 2011 the plaintiffs, Maria and Basil Goritsas sought to file in court a Summons (and supporting affidavits) seeking an injunction against Messrs Keddie, Barakat and Roulstone (the defendants) in the following terms - "... [The] defendants be restrained from, either by themselves or by their servants or agents, at any time contacting , approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies The Insurance law Specialists Pty Limited or any other person or persons on behalf of such former clients who have provided instructions to Firths The Compensation Lawyers to act on their behalf." Leave was also sought for short service. 3The summons came to the Duty Judge, Hislop J who gave leave to file the summons and affidavits, abridged the time for service to 18 November 2011 and ordered that the summons be returnable before the Duty Judge on Monday 21 November 2011. I was the Duty Judge for that week and the summons was duly placed in my list on 21 November 2011. 4On 22 November 2011, the summons was called on. Mr Stitt QC with Mr G J Mahoney appeared for the plaintiffs and Mr Dubler with Ms M Castle appeared for the defendants. Mr Stitt sought to file in court an amended summons which added Mr Firth as a plaintiff. Mr Dubler objected on the grounds that that Mr Firth did not have standing to seek injunctions on behalf of other people and that "there needs to be a legal right supporting the proposition that there cannot be communication. I indicated that these were matters of substance which were not going to be decided on an amendment application. It was made clear that the defendants' point could be made in the course of dealing substantively with the summons and leave was granted for the amendment. The affidavits of Mr Firth and Ms Goritsas were then read after objections to various parts were determined. I asked whether Mr Dubler relied on any affidavit. He responded that the plaintiffs had been asked for the causes of action to be identified, since none were disclosed in their affidavits and added that the facts were in dispute. He sought an adjournment of 48 hours to provide an opportunity to put on affidavit material. I asked for the defendants' view of the rule of professional practice relating to solicitors making direct contact with clients of another solicitor. He submitted that this rule did not apply to any communications that may have been made by the defendants to their former clients, since they were not doing so as solicitors. He added that, at all events, his clients denied any such communications. (The communications in question were allegedly designed to induce the defendants' former clients to settle their cases for significantly lesser amounts than the true worth of their claims.) The foreshadowed affidavits would cover this point. He said that his clients had received notice of the summons at about 5.30pm on 18 November. I commented that it was a simple a matter to discover whether any communications had taken place and should not take four days. He responded that there may have been communications by third parties on their own account. The defendants' submissions then refer to the following exchange - HIS HONOUR: They are taking a charitable interest to assist your clients, without your clients' knowledge, is that the gist of what you are telling me. DUBLER: I would not put it in those terms. HIS HONOUR: What is wrong with the terms I used? I am sorry, I don't mean to be offensive but was the mistake about the terms I used? 5It is submitted that the apology accepted that I had been offensive. It merely stated that I had not intended any offensiveness. "Charitable" is merely a pointed way of describing intervention by third parties in the financial interests of the defendants' but without their knowledge or agreement. It is then submitted by on the defendants' behalf that "the tenor and tone of his Honour's interchanges with counsel for the defendants and his apparent indignation in relation to the defendants' conduct and defence of the proceedings was palpable". Nothing more is said about the proceedings on 22 November to substantiate this allegation. It is untrue. However, for completeness of context I should briefly relate what then transpired. 6I asked Mr Dubler whether, in the meantime and without any admission of liability, his clients would be prepared to enter into an undertaking that they not communicate with any person identified as a client of Firth's. Mr Dubler responded that he would need to obtain instructions but wished to make it plain that his clients had not communicated (with Mr Firth's clients) in the past and had no intention of doing so. He mentioned that this was "obviously a situation of bad blood" and his clients were concerned that an undertaking might lead to further litigation. An undertaking had been offered in correspondence but a breach of an undertaking made to the Court would have significantly different consequences. This exchange ensued - "HIS HONOUR: Certainly, but I would assume that breach would be out of the question. DUBLER: Yes, that is a fair comment. Obviously that is one approach and, perhaps, if I can explore that my instructions might change. HIS HONOUR: There do seem to be conflicts of fact that need resolution to one level or another. I have not heard from Mr Stitt. I am not altogether unsympathetic with your application but this would need to be on the terms which I have stated." Mr Dubler then reiterated the "main point" that the application is misconceived because of a lack of a cause of action or legal right grounding it and he did not wish the undertaking to be used as a lever for saying the argument was (I think he meant to say) undermined. I explained that, although it was theoretically possible to deal with the argument in the abstract, I preferred to determine the question in the context of such factual findings as need to be made unless there were a "very powerful argument for not doing so." Mr Dubler responded that his client's agreed that it would be best to have one argument. 7There was then an exchange with Mr Stitt QC who made some criticisms of the "third party" explanation advanced by Mr Dubler and said his client wanted a temporary injunction since and undertaking "would be worthless". I stated that one difficulty with his submission was that there was a (implicitly, an arguable) point as to whether a solicitor had a legal right to seek the injunction as distinct from, say, the Law Society and added - "... [And] there is a second answer. That is, all these serious allegations having been made, it would be a very strong step for the Court, I think, to reject an otherwise binding undertaking from a solicitor on the basis that the solicitor's undertaking could not be trusted. That is a very strong step which I would be extremely reluctant to take." Mr Stitt QC then moved to the underlying legal basis for the relief, basing it (to oversimplify somewhat) on the tort of interfering with contractual relations. 8There was then a brief discussion about timetable and I ruled that I would accept an undertaking. Following a brief adjournment Mr Dubler indicated that the defendants were willing to give an undertaking and provided proposed minutes of order. There was then some discussion about the timetable, during which I commented (without dissent) that it was not in anyone's interest that the matter should carry on and that it should be disposed of quickly. Mr Dubler proposed a week's adjournment (to 29 November) and accepted 30 November as suitable. Orders were then made, essentially by consent, providing for service of material. 9Although complaints are made by the defendants in the submissions made on their behalf in the application for disqualification as to the correctness of granting leave to amend the summons by adding Mr Firth, there is nothing in the course of proceedings or in the ruling that the substantive question of his standing would be determined at a later stage that suggests in any way that any bias or prejudgment had occurred or might reasonably be apprehended. The comment has also been made that the substantive question has still not been decided. However, no occasion to do so has yet arisen. The defendants have made no application in this respect. 10It also submitted that the joining of Mr Firth "has resulted in a matter which has no inherent urgency being managed with unseemly haste". I do not see anything unseemly about attempting to dispose of this matter quickly. Moreover, no complaint at this stage was made about the desirability of so doing. 11On 24 November the matter was relisted before me at the instance of the defendants. Mr Dubler commenced by stating that the purpose of doing so was to make a proposal but also to make a complaint. The proposal was that, although it was still maintained that there was no legal or factual basis for the claim for injunctive relief, the defendants were anxious to avoid any appearance of resiling from an undertaking they had given and were therefore prepared to offer to consent to an order on "a final basis" in the terms of the current interim undertaking. This would avoid the need for a trial. Mr Dubler's complaint was that, having made this proposal, the plaintiffs responded with serving "Points of Claim" which included a claim for damages. The plaintiffs said that they wished to retain the hearing dates. 12Mr Dubler submitted that the Points of Claim significantly expanded the factual matrix. I agreed that the Points of Claim did not adequately state the factual issues and said that it seemed to me that the appropriate mode to proceed was by way of statement of claim followed by a defence. Mr Dubler agreed. He said that the defendants did not fully understand the case and were not in a position to meet the claim for damages; they would not be ready by the set hearing dates to deal with all issues of liability in the absence of a pleading, especially (as I understood it) in light of the need to deal with discovery and notices to produce. I suggested that, the issues of liability being relatively simple, it might be convenient to deal with damages separately. Mr Dubler submitted that it would not be appropriate to separate the damages and liability cases. He submitted that, there being no need for urgency, the proceedings should go forward in the normal way. I expressed my view as follows - HIS HONOUR: I am troubled by - and I will hear what you have to say about it of course - I am troubled with the context here. It is true that the claim is based upon a tort of interfering with contractual relations but this is in the context of professional conduct and I would be troubled by any significant delay in a determination of those issues. It would be one thing, I think, if the allegations were related to a single and isolated event, but they are not, and I hasten to add that I am talking about allegations and we are far from proof in relation to that . But the scale of the allegations and the fact that they involve professional conduct speaks, I think, for an expeditious determination. Obviously what expedition requires is a matter one can debate. Would you be submitting it is an immaterial factor? DUBLER: No. HIS HONOUR: It is, of course, to speak for your client's interests. It is also in the interests of your client that it would be determined quickly rather than otherwise. DUBLER: Yes. It ill behoves the solicitor party to say expedition is not appropriate. Dealing with interference with contractual relations - we do not have clarity as to the terms said to be breached and the manner in which it is said to be breached. After some further discussion about the generality of the allegations in the affidavits, the following occurred - HIS HONOUR: ...I am in your court about the need to proceed in a way that identifies specific allegations to which you can make a specific pleading response. Then one has to ask about what time is necessary to enable that to be done. At the same time I approach the question of further delay with reluctance but I am open to be persuaded. 13Mr Dubler then mentioned specific difficulties with particular witnesses and foreshadowed the need for "another week or two" to obtain affidavits and issue subpoenas. He submitted that something in the order of four weeks would accommodate most of the procedural issues and still be a very expedited hearing. However, he pointed out that this was without specific instructions which, in effect, would need to await specific particulars from the plaintiffs. 14Mr Stitt QC pointed out that the injunction sought in the summons was significantly wider than that offered by the plaintiffs. He also referred to an allegation that, only recently, there were communications involving a Mr Margiotta and clients of Mr Firth's named Meng and Zhao by way of authorities directing Mr Firth to transfer the files to his firm. In brief, he submitted that the connections between Mr Margiotta and the defendants were such that he could be seen as, in reality, acting pursuant to an agreement with or involving the defendants to deal with Mr Firth's clients. He submitted, in short, that this kind of conduct would proliferate, that the affidavits so far served were sufficiently detailed, that the undertaking was insufficient to deal with the way in which the defendants had proceeded and were likely to continue proceeding. He submitted that the trial dates should be retained. 15Mr Dubler took up some matters of detail in respect of the affidavits and Mr Stitt's submission. There was some discussion about the terms of the injunction. Mr Dubler needed to get instructions, as he had foreshadowed. I then said - "Mr Stitt, I don't think we can keep next week for hearing but I propose to manage this matter and I propose to manage it on a very tight schedule and I don't propose to take any notice of vacation. If you and Mr Dubler can have a practical conversation about the terms of the order and that time-table - I am thinking something in the order of perhaps a trial commencing perhaps in mid December. STITT: If your Honour pleases. We can work towards that. HIS HONOUR: They are serious allegations. Mr Dubler must be entitled to have a reasonable chance. That is my off-the-hip impulse about the date and perhaps you can discuss that with him. 16Counsel then returned with an agreed proposed timetable. There was some uncertainty about the date of my availability and it was agreed that it would be during the week of 12 December on a day to be notified. By consent the following order was made - "...[The] defendants be restrained from, either by themselves or their servants or agents, at any time contacting, approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies The Insurance Law Specialists Pty Limited in respect of whom the third plaintiff has served an authority to transfer the file or any other person of persons acting on behalf of such former clients (other than any solicitor acting on behalf of such former clients on the record) who have provided instructions to Firths The Compensation Lawyers to act on their behalf in respect of the subject matter of those instructions." 17It is impossible, in my view, to accept that any reasonable observer might have seen in these exchanges the slightest hint of bias against the defendants or that there was any indication of "unseemly" haste. 18On 30 November 2011, the plaintiffs made an application , ex parte , for an interim injunction against Mr Margiotta, a solicitor which restrained his firm, except for the purpose of filing a notice of ceasing to act and, if necessary, seeking leave to do so - "from, either by themselves or by their servants or agents, acting or continuing to act, including taking any step, executing any document or entering any judgment or order in the District Court on behalf of Xi Li in District Court proceedings 344874 of 2010 or otherwise." The reason for urgency was that Mr Xi Li's trial was set down to commence on 1 December 2011. The summons was returnable at 8am the following day, 1 December, so that if possible the issue between the parties could be resolved before the hearing commenced. When the matter came before me at that time, Mr Bates of counsel appeared for Mr Margiotta. He informed me that the case was in the reserve list and might well not be heard that day. He said that Mr Li wished to settle his case and had come to the firm because of a link between Mr Li's wife and Mr Huseini, a solicitor employed by Mr Margiotta. 19The very substantial difference between the apparent value of Mr Li's case and the figure it was proposed he should settle for, seemingly very markedly to the defendants' advantage, naturally gave rise to questions about the advice he was given and how the sudden, late transfer of retainer from Mr Firth to Mr Margiotta's firm came about. In raising this matter as being of concern, I pointed out , "I am only talking at the moment about appearances and the appearances are troubling". After some further discussion, the following was said - HIS HONOUR: I think that is fair. I will go off the bench for 10 minutes and give you an opportunity. This is messy, Mr Bates. I am troubled by the intruding in the solicitor/client relationship communication, which is otherwise privileged. Although this looks like, on the face of it, one of the exceptions, but I want to go no further than I have to. Your client is much more aware of the questions and perhaps of the answers that are material here. I do think you need some time. As I have said to you, the circumstances are troubling and I do gather that your client has not been given the strong advice which I would have regarded as the absolute minimum called for in these circumstances. However, I don't make any finding about it, Mr Bates. It is merely I am telling you that's the impression I have had from what you have said. BATES: Can I say before your Honour adjourns that I was called late in the night to appear this morning. I have had the benefit of a very short conversation here and instructions. It might be my limitations rather than anything else. HIS HONOUR: Mr Bates, I have far from a settled view about it. It is only fair to you to let you know what impression I am gathering so you can indeed have a sensible discussion with your client. 20On his return, Mr Bates clarified some matters concerning Mr Huseini's prior employment with Keddies. This exchange then ensued - In relation to other issues, without going too much in the details of the privileged matter, I can say this to your Honour. When Mr Li came yesterday to see Mr Husaini he was told it was listed for hearing today. He was told that Mr Firth has prepared the case on the basis of obtaining $100,000 plus costs so Mr Husaini has said to be the claim at its highest. The client was adamant he did not want to run this litigation. He had certain family concerns, already other matters such as the issue of bankruptcy [of Mr Keddie] and he didn't want to take any risk. He wanted it resolved and move on. He wanted it settled. HIS HONOUR: The client is entitled to do that, as I have said. It is only where, from the solicitor's point of view, the solicitor has the obligation to ensure it is a fully informed decision. I must say that material meeting, the matter of merely giving advice along the lines that you have said does not strike me, though subject to submission, does not strike me as approaching adequacy . BATES: I won't want to waive privilege. I'd have to see the detailed settlement instructions one might expect to be traversed. STITT: There is no privilege in iniquity. HIS HONOUR: The line of privilege is not crystal clear. However, I have said what I have said as to what I regard as the minimum that should have been said. If it wasn't, I mean, I might need to refer this matter to the Commissioner I think. 21Mr Bates then informed me that the action had already been settled before notice of the injunction had been received, indeed, before the injunction had been ordered. 22I then went on to deal with subpoenas that had been issued by the plaintiffs. Questions of privilege arose and also whether there had been satisfactory returns. In respect of the latter issue, Mr Margiotta and Mr Husaini were cross-examined by Mr Stitt QC. Orders were made by consent joining further defendants, continuing the injunction against Mr Margiotta and, amongst other things requiring the plaintiffs to serve a verified statement of claim by 8 December 2011. 23On 2 December 2011 I was informed that Mr Margiotta had ceased to act for Mr Li and the injunction was varied to permit him to file a notice of ceasing to act in the District Court and seek leave, if necessary, to do so. 24On 6 December the matter came on for return of subpoenas. Mr Stitt QC, however, interposed another issue arising out of alleged communications with Mr Xi Li. He sought leave to file affidavits of Mr Li and Mr Firth in Court. He submitted that they were evidence of "a clear breach of the injunction which your Honour ordered" and indicated that he wanted to continue to cross-examine Mr Huseini and also Keddies to produce "the relevant bank records, the relevant trust account records". It seems that Mr Branson QC had not seen the affidavits. 25I granted leave, considering that whether they would be relevant in whole or in part or needed to be read and what objections, if any, might need to be determined could wait until Mr Stitt QC sought to rely on them. There was at that stage no application to read the affidavits and I did not do so. The plaintiffs had issued a subpoena that concerned certain documents to which, it seemed, the affidavits referred either directly or indirectly. Mr Stitt indicated that the return to the subpoena was inadequate. Mr Branson QC for the defendants, said, "We are ready to meet that." Mr Branson then referred to authorities dealing with the question of sufficiency of a return to a subpoena. He then asked to read the affidavits to see whether there was anything new in them that he needed to consider and obtain instructions on. I explained that I was dealing not with the affidavits but with the adequacy of the return to the subpoena. Mr Branson said that, to deal with the sufficiency in answer to the subpoena of his clients, he needed to read the affidavits and obtain instructions. I responded that he would have that opportunity but that "I do not see why, when you have a subpoena that requires particular documents, you simply do not produce the documents". Mr Branson responded that apparently Mr Stitt was making a new allegation involving the matter of XI Li. 26Thus far, the state of the proceedings was clear. A subpoena had been issued requiring particular documents. It appeared that those documents were, one way or another, identified in the affidavits which Mr Stitt had sought to file. However, he had not yet sought to read them and so they were not yet material to any issue. They might be relied on in due course depending on the response made by Mr Branson's clients to the subpoena. In that event, it is plain that Mr Branson must have the opportunity to read the affidavits and obtain instructions on their content. In asking him to indicate what his client's response to the subpoena was, the rules of procedural fairness were in no way compromised. 27Mr Branson then raised what had occurred on the previous hearing (referred to above) and I pointed out that it did not affect the present matter. I tried to explain the way I saw the present matter, saying, "The present matter as I see it ..." As I recall what then happened (which is not accurately or completely recorded in the transcript) I was then interrupted by Mr Branson in a raised voice saying words to the effect, "Will you give me procedural fairness?" I attempted to repeat what I said but Mr Branson again interrupted me asking the same question in an even louder and more peremptory tone. I asked him not to interrupt me, raising my voice somewhat so that he would hear me. He simply said very loudly, "Your Honour need not raise your voice, I am concerned at the lack of procedural fairness -" and I then told him to sit down. He said in an angry voice, "No I won't", adding (recorded somewhat incorrectly in the transcript) "Will your Honour give me procedural fairness now". I said, "You are being impudent". He repeated again in a raised and angry tone, "Is your Honour going to give me an opportunity..." at which time I interrupted and told him to leave the Court. He said angrily, "I won't" and sat down. I instructed my tipstaff to get the Sheriff's officer. Mr Branson then said, "Your Honour has gone too far" and remained at the bar table. The following then ensued - HIS HONOUR: I have never had a situation where counsel has (a) interrupted me and (b) when I asked him not to gives me a slogan. Of course I afford you procedural fairness Mr Branson, I am simply stating the issue as I see it and I will not be over talked. Now you apologise or leave? BRANSON: I want to know if I am able to read the affidavits before Mr Stitt advances the matter any further please? HIS HONOUR: When you apologise Mr Branson? BRANSON: Your Honour how can I apologise when I make a submission as senior counsel that I wish to seek instructions about these affidavits? Your Honour just says oh well, I will deal with it anyway? HIS HONOUR: I have not said that. BRANSON: You did, with respect. HIS HONOUR: I said I wanted an answer to a simple question, I am not going to engage in an argument with you. There is a relationship between Bench and Bar, hopefully of mutual respect, but it requires counsel not to interrupt and not to berate a Judge and I will not be berated and you apologise or-- BRANSON: I will not apologise. I seek procedural fairness, which is all I asked you for, and the transcript will bear that out if you take the action as you are proposing to do. I am representing my clients who are solicitors, they are serious allegations but you have not indicated with respect that I should be able to read these affidavits now, take instructions from my solicitor so as the case can proceed this morning and apparently deal with it adequately. That is my application. HIS HONOUR: The question was not whether you would have procedural fairness, the question was whether you would interrupt me and when you refused to refrain from that conduct, and insisted on over-talking me, whether you should apologise. That is the question, either you apologise for your conduct or you leave my court? BRANSON: For interrupting you? HIS HONOUR: Yes. [At this point there was a wait of between five and ten minutes, waiting for the Court Officer.] BRANSON: I am very sorry for interrupting you. May I renew my application and read these affidavits? HIS HONOUR: I will consider it in due course. BRANSON: Thank you your Honour, that is very generous of you. HIS HONOUR: Nor do I appreciate your irony Mr Branson. Your conduct is disgraceful. The apology and comment about generosity were made in a loud, angry and ironic tone. 28In my view, the conduct of Mr Branson, coming as it did from a senior member of the Bar, was indeed disgraceful. Furthermore, it was based upon a complete misunderstanding of the situation. Given the way in which he ultimately apologised, which bordered on the contemptuous, he most fortunate that I did not exclude him from the proceedings until he made a more appropriate response. I did not do so because I did not wish to put his clients to further expense. It is only fair that I should record a letter sent to me by Mr Branson after court adjourned - "Dear Judge, I am writing to apologize unequivocally for my conduct in Court today. By way of explanation but not exculpation I perceived that my clients had been ambushed by the Plaintiffs and that professional courtesy had not been afforded to us. You may be assured that our legal team spent a very considerable amount of time and effort in preparing for the Subpoena issues not dealt with on 1 December 2011. Wrongly, I overreacted to what I believed to have been the hijacking by our opponents of what we had worked on and were ready to assist the Court with at 10.00am today. Yours sincerely..." 29An important point to be made about this sorry episode is that, whatever it might have shown about my attitude to Mr Branson's conduct, it had no bearing whatever on the issues in the case. No reasonable person could have thought that I might be prejudiced against Mr Branson's clients because of my characterisation of his conduct as disgraceful and my insistence on an apology. Nor was there in fact the slightest suggestion of any procedural unfairness. 30Following Mr Branson's "apology", I called on counsel who appeared for one of the subpoenaed parties and who needed to get away. That subpoena was dealt with without controversy. I then called on Mr Douglas QC who appeared for Slater & Gordon on subpoenas addressed to that firm in its various manifestations. Again there was no controversy although I needed to make some orders about confidentiality. The Margiotta and Huseini subpoenas were next. Mr Stitt QC commenced submissions about the sufficiency of earlier returns and mentioned the material contained in the new affidavits, explaining (as I understood him) that access to certain banking records that had already been subpoenaed and specified in a notice to produce were now of particular relevance to the Xi Li matter. Mr Branson interrupted him to seek leave to mention a matter. I gave leave. He wished to hand up three volumes of what he described as a "judge's book" dealing with matters that were raised on 1 December. He said they did not deal with the notices to produce in connection with the Xi Li matter. He undertook that the material would be produced, simply pointing out that that it would take a little time to do so, since his solicitor was en route. He said that the notice to produce had only been received at 5.15pm the previous day. Mr Douglas QC then raised the matter of confidentiality in respect of his clients' return and, after a short discussion, was excused. 31I then heard from Mr Bates, who produced further documents without controversy. He then mentioned the two affidavits filed by leave, saying that he had not the opportunity to obtain instructions on their contents. He and sought the opportunity to do so and speak to Mr Huseini about them before his cross-examination by Mr Stitt QC resumed. Before acceding to this application I mentioned the documents that had been produced in connection with Mrs Meng and Mr Zhao and brought some troubling matters to the attention of counsel, indicating however that I did so tentatively and without forming a final view. Amongst other things, Mr Bates submitted that it was premature to deal with the substantive issues in the case in a process of testing the adequacy of a return to subpoenas. I agreed with that submission. Another subpoena was then dealt with shortly and there was a discussion of timetable. 32Mr Stitt QC then briefly cross-examined Mr Hasson on his return. 33Mr Huseini's cross-examination then resumed. I overruled several objections made by Mr Bates to the width of some of the questions as going to the substance of the case rather than the sufficiency of the return. In the course of his evidence, Mr Husaini identified a cheque dated 1 December 2011 on the account, "Russell and Roulstone and Barakat" made out to Xi Li together with a receipt signed by him. He identified the signature of the drawer as that of Mr Roulstone, one of the defendants. 34The defendants submit that I permitted Mr Stitt QC and myself asked questions of Messrs Hasson and Huseini "whose clear intention was to elicit evidence of the breach by the defendants' of his Honour's orders and ... evidence that would be prejudicial to the defendants". It is submitted that the questioning went outside the "carefully circumscribed" questioning on a return of subpoenas. The test for such questions is a simple one, namely whether it is relevant to the issue of the adequacy of the return. There is no bright line. In my view the questions were sufficiently directed to that issue to be admissible. The mere fact that the answer might potentially be against the interests of the defendants is immaterial. In no sense did this make the questions unfair. It will be seen that the questions I asked were designed to get to the point quickly in an ordered way. There was no departure from neutrality. A fair minded observer would apprehend no more than a desire to ensure that the returns to the subpoenas were complete. 35When Mr Stitt QC completed his cross-examination of Mr Huseini, he made the following submission - STITT: Depending on what is produced by the three Keddies defendants this afternoon in relation to the bank records, which is what we are now most focusing on, such as the trust account ledgers, the relevant bank accounts and relevant cheques - because it looks now as though the modus operandi has been established. Depending on what is produced I would be making an application that Keddies should this show cause as to why they have breached the injunction and on the face of it, it is a very strong prima facie case. You only have it to look at the date of the cheque. 36There was a discussion with Mr Branson about a timetable for production and the likely documents that would be forthcoming. Mr Branson, after briefly conferring with his solicitor, produced a number of documents, pointing out that a deed of release was missing. Mr Stitt QC complained, in effect, that the return was very significantly inadequate and said he required the subpoena to be answered formally. Mr Branson responded, "I agree". There was then some discussion about further documents. I then gave leave for Mr Branson to file in Court a Notice of Motion and affidavit in support by Mr Tassell. The Motion sought the setting aside of para 2(a) of the subpoenas addressed to Verekers Lawyers. Mr Branson, mentioning that the files were voluminous, said - "If you direct us to produce them, it will take us a bit of time. We would prefer not to but that is the point of our objection, that there is a great deal of material..." He candidly conceded, in effect, that it was not a case of fishing but, "Prima facie it is inconvenient and we did not know about the deadlines." I ruled that the subpoena was not oppressive. A date for production and access was agreed without argument. 37I have set out these ensuing discussions to demonstrate that the matter proceeded in an entirely conventional way, with no complaints made by Mr Branson as to haste or unfair expedition or, indeed, any other matter. 38I then commenced to deal with the "show cause" application which arose from the contention of the plaintiffs that the defendants were in breach of the injunction as to communications with Mr Firth's clients. Mr Stitt QC referred to "documentary evidence" as evidence of a "clear breach" of the injunction. I understood this to be a reference to the banking records comprising a cheque 1 December 2011 signed by one of and on behalf of the defendants, an undated acknowledgment by Mr XI Li of receipt of the cheque "from Keddies" and bank records showing the negotiation of the cheque. (The transcript is somewhat garbled at this point, although the sense is clear enough. What appears below is my recollection.) I said - "Mr Branson, it does seem on the face of it that communication is a breach of the injunction and that the defendants were restrained either by themselves or their agents at the time or approaching in any way or communicating or attempting to do so with any of their former clients. BRANSON: Yes, 24 November. HIS HONOUR: Yes, 24 December. BRANSON: Yes, I have those, I have a copy of those orders. HIS HONOUR: And the undertaking given on the 22nd was that ... the defendants give the undertaking set down below and the defendants agree (Read). Now, I suppose Mr Xi Li at this date did not have a client of hers as at - what is the date, 1 December. [This garbled but I do not now recall exactly I said.] However it does appear to be directly ... considering the circumstances in which those orders were made I find it difficult to understand without pre-judging how there could be any ground for misunderstanding and it follows that I regard it serious. BRANSON: Extremely serious. HIS HONOUR: Urgent. Let me tell you what I propose. BRANSON: I cannot assist with the procedure. HIS HONOUR: I hope you will be able to assist by two o'clock tomorrow afternoon because I am trying to propose the end of this matter at two o'clock tomorrow and I want your clients here. BRANSON: Your Honour, may I just ask this and it is a technicality but should we respond to what you have just said and otherwise your Honour does not propose that there should be any more formal notice given. HIS HONOUR: There are needs for such formal steps where, for example, the parties no longer perform. [Again, this is garbled but again I am unsure what I said.] BRANSON: Yes. HIS HONOUR: And fair notice of what is proposed. BRANSON: Of course, I will look at the rules in the meantime. HIS HONOUR: And what I am expecting is a full and candid explanation. BRANSON: Yes. HIS HONOUR: And if there has been a breach , in the way in which it is proposed to deal with it and maybe these gentlemen - I say "may" because I want to go through the procedure. And I'm not sure in this context about the rules against self-incrimination. The High Court has said, in dealing with the so called difference between civil contempt and criminal contempt, that it is -- and your clients do have some rights in this context too - but I am hoping for candour without insisting on it at this stage because I am not sure where the lines are drawn. But I suppose it is true that either a contempt is dealt with or it is not and if I thought it contemptuous and not adequately explained or dealt with then certain things follow. I simply have in my own mind that I have not dealt with the problem because I actually thought it was inconceivable that a solicitor would not obey an order of mine. BRANSON: I proceeded upon that premise. HIS HONOUR: It is possible that things have happened which I have not anticipated. BRANSON: From the bar table can I say that what has concerned me in a general sense is we have got people who are of a different culture and these names have been bandied around. I have not pursued any inquiries about that but, prima facie your Honour I don't appear-- HIS HONOUR: The solicitors to whom this injunction was directed spoke-- BRANSON: No doubt. Does your Honour propose to make specific directions that we take out a transcript or not? HIS HONOUR: They are here tomorrow afternoon at two o'clock for whatever is going to happen then. BRANSON: Thank you, I understand. HIS HONOUR: It may be that if the material advice they are better there had better be a good explanation. [Again, this is garbled and I am unable to recall precisely what I said. I think, however, that the gist is correct.] BRANSON: Can your Honour direct whether we are getting a transcript perhaps tonight. HIS HONOUR: Yes. STITT: I have not looked at this law and I will be of assistance by two o'clock tomorrow. I was in a case involving the contempt of a solicitor called Kesby and it is a reported decision of Justice McClelland when he was Chief Judge in the Equity Division and it is a very helpful discussion on the law of contempt and he deals with the civil contempt and the criminal contempt and in terms of both undertakings and I think injunction and my recollection of the facts were that the solicitor gave an undertaking which she breached such that the high Court has dealt with but as a starting point Justice McClelland's judgment is a useful start. HIS HONOUR: On first blush I don't see a breach of the undertaking because of the dates but the order seems to me to be a different kettle of fish. Yes Mr Bates. [There was a brief discussion with Mr Bates about costs.] STITT: Can we have an assurance from my friend that no attempt will be made again to approached Mr Xi Li or anybody on that end of the bar table. BRANSON: We are still bound by the orders. STITT: It doesn't make any difference. BRANSON: If we are foolish enough-- HIS HONOUR: I am not going to ask for such an undertaking because I don't propose to weaken the order, the order is enough. 39It will be seen that Mr Branson agreed that if there were no ground for misunderstanding, a breach of the injunction would be "very serious". He raised no concern about the possibility of prejudgment. He accepted the proposed timetable without demur. It is worth adding, I think, that it was not necessary to read the affidavits and no further application was made by Mr Branson in respect of them. 40As I said, I took the view that, prima facie, the injunction had been breached by virtue of the issue of the cheque on to Mr Xi Li on or about 1 December. The delivery of a cheque and the payment of money is plainly a communication. The cheque was signed by Mr Roulstone and drawn on an account of to which he and Mr Barakat were parties. It was paid to settle the litigation involving all three defendants. That he acted without the knowledge and consent of the other defendants appeared to be unlikely. The defendants were solicitors. It seemed to me reasonable (as, indeed, it still does) that their position should have been, having regard to the relationship of confidence between the Court and the profession, to make an immediate explanation, which of course might (and, hopefully, would) be a completely satisfactory disposition of the matter. However, I made it clear that I did not require any such explanation. The notion that I had actually prejudged whether there had been a breach of the order is not remotely reasonable. Firstly, I expressed myself in qualified language (as italicised). The matter that I found it difficult to accept was that there could have been any misunderstanding that payment of a cheque might not be a communication within the meaning of the order, foreshadowing that as a possible explanation, though again I explained that I was not prejudging the matter. It is submitted on the defendants' behalf in the present application that it is evidence of bias and prejudgment that I expressed an interpretation of the injunction. The meaning of its terms is a question of law. The notion that it was not appropriate that I should interpret its terms for the purpose of considering whether it had been breached only needs to be stated to be refuted. The mere fact that the communication happened to be by way of providing a cheque did not seem capable of qualifying its character as a communication providing, of course, the cheque was delivered by the defendants or with their knowledge and consent. However, even as to this matter, I did not express a concluded view. A reasonable observer would accept that I was open to the possibility that the defendants might persuade me otherwise. 41Objection is taken to the "show cause" procedure adopted by the plaintiffs. At most, if valid this merely indicates an error of law and scarcely suggests bias. However, it will be obvious from the above that the term was used as a short-cut description of proceedings for contempt. Nothing significant followed from it and the suggestion that the onus of proof was reversed is patently mistaken. I simply pointed out the apparent breach of the order constituted by the delivery of the cheque and expressed the hope that there would be an explanation forthcoming. No findings were made as to the correct procedure, which was yet to be the subject of submissions. The contention that there was no identification of the matter that called for explanation is plainly untrue: it was clearly articulated several times. Nor is it true to say that there was any reluctance to afford procedural fairness to the defendants, as the transcript plainly shows. As to the expression that the defendants' should be "brought to heel", it was used by Mr Stitt QC when he brought to my attention the judgment of Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 501; (2001) 4 VR 501 in which his Honour said, a propos the continuing fiduciary obligations owed by solicitors to ex clients - "[58] If I thought that the solicitors in this case were subject neither to a negative equitable nor a negative contractual obligation, I would say that what has been done by them -- and I would have regard to the whole of their conduct here - is so offensive to common notions of fairness and justice that they should, as officers of the court, be brought to heel notwithstanding that they have not (on this hypothesis) infringed any legal or equitable right..." I do not doubt the correctness of his Honour's view and the potential foundation for injunctive relief of fiduciary obligations of this kind. However, I did not adopt Mr Stitt's characterisation of the Court's task and I did not use the term. 42The matter resumed on 7 December as arranged. Mr Branson produced a short written submission. It did not suggest that anything that had previously transpired might lead to an apprehension of bias or prejudgment. It was confined to the appropriate procedural approach to a charge of contempt. The discussion then proceeded - HIS HONOUR: The procedure must be complied with. The second however is this. Your clients on the face of it or at least Mr Roulston [who signed the cheque] were in breach of an order of this Court and they are solicitors. There is a special relationship between legal practitioners and this Court. They are entitled to require strict adherence to the rules but it will be a matter to reflect upon that it is insisted on if ultimately the only possible response was an explanation and an apology and an attempt to purge the contempt. And that undertaking such steps if the case should appear to be a clear one whilst formalities were attended to is, I think, a matter which is material to judging the extent to which as officers of the Court they consider themselves in a relationship of confidence with the Court. You understand what I am saying. BRANSON: Your Honour I undoubtedly and respectfully agree with everything your Honour just said. HIS HONOUR: The next matter however is the extent to which I would permit them to be heard in connection with any matter arising out of the litigation. BRANSON: This is the Xi Lee matter? HIS HONOUR: No, I don't think it is limited to Xi Lee I must tell you. BRANSON: I hear your Honour I apologise, I was asking a question. HIS HONOUR: I would be prepared to be persuaded by you but my immediate response is you don't commit a contempt and then come and say to the Court we want your assistance in relation to this or that or we want to be heard about this or that until the contempt is purged. BRANSON: It has to be proven with respect. HIS HONOUR: I'm not altogether sure that I would not delay and perhaps uncomfortably from your client's point of view until this matter is clarified. BRANSON: Your Honour with respect... HIS HONOUR: Given the strength of the prima facie case. BRANSON: Well your Honour, yesterday I indicated to your Honour, properly in my view while we were in discussion, that I didn't vehemently seek to challenge your Honour's view expressed prima facie. We have now looked into the matter very thoroughly, not to a state of perfection yet, but I have to indicate to your Honour that I formed the view that there has been no contempt. And I have given that advice. And how it comes out will be fundamentally of course your Honour a matter of evidence. But may I just make the submission that it is premature to embark upon any examination by your Honour of their conduct. Not to suggest that I think your Honour is going to embark upon a disciplinary inquiry. HIS HONOUR: No, I am not involved in discipline. Mr Branson though if it is not contempt, surely at least I am entitled to an explanation. BRANSON: Well your Honour, once there is something formulated I beg your pardon, I thought my friend said something. Once -- and I'm not sure that this is necessarily an appropriate procedure given our written outline, but conceding arguendo that an explanation is warranted in the neutral sense and I put that as a response to what your Honour said about officers of the Court. HIS HONOUR: I have not proposed it as a mandatory matter. BRANSON: No your Honour I agree with respect. I am not disagreeing with what your Honour put to me at all today. It just seems to me with respect that if an explanation is to be forthcoming other than via the mechanism contemplated by pt 55 of the Supreme Court rules then the allegations or charges or whatever ought to be articulated. I do not concede formally that it is appropriate at this time for such an inquiry or examination or other type of process to be embarked upon. I understand perfectly why your Honour is anxious about it and prima facie as I indicated to your Honour yesterday, it seemed to be how your Honour described it, but upon investigation I am informing your Honour as senior counsel in my view there has been no breach. HIS HONOUR: I realise that litigation has become increasingly formalised. But at my time at the Bar frankly until this case I had thought that the ordinary tenets of professional courtesy between the profession and the court in circumstances of this kind would have led to the voluntary proffering of an explanation, if there were one, quite apart and disregarding any possibility of more formal proceedings. And I place on record my grave disappointment that your clients, and in particular Mr Roulstone, takes a different view about the courtesies owed to this Court by the profession. Mr Stitt? STITT: It is not a question of courtesy, it is a question of duty. And what my learned friend has said doesn't accurately accord with what actually happened yesterday as your Honour will recall. Yesterday the cheque signed by Mr Roulstone was identified through Mr Husaini in the witness box, I had it marked, I will now tender it. BRANSON: But on what application with respect your Honour? STITT: Well, I am going to deal with that in a moment. BRANSON: We have got no notice. STITT: You have got notice because you remember yesterday his Honour required.... HIS HONOUR: You have had adequate notice Mr Branson. STITT: Your clients to be here to answer a charge of criminal or civil contempt. BRANSON: No such charge has been levelled. HIS HONOUR: You had sufficient notice for me to deal with the matter. You have sought as it were to adjourn the matter for it to be placed in proper order. I am considering that matter. BRANSON: If your Honour pleases may I clarify something. When my learned friend talks about an application, there is no application on foot with respect of contempt. HIS HONOUR: I am not entirely sure about that. BRANSON: There has been nothing we have served of which we know of. STITT: You don't record accurately what happened yesterday. HIS HONOUR: Mr Stitt just one moment. Mr Branson, apart from formalities your clients have had every notice that is reasonable for present purposes. BRANSON: Your Honour may I just point out one thing please, we don't have the transcript of yesterday. I did put to your Honour this proposition that overnight I wished to consider the formalities of the procedure. And the reason I did that was because I don't come to this court very often anymore at all and I was entirely uncertain as to the effect of the Civil Procedure Act on what I knew from days ago was the clear operation and ambit of pt 55. And I reserved that position your Honour. And I said I think that it may be that I will come here tomorrow at 2 o'clock and put a submission to your Honour about procedural aspects. Now we have done that in writing and the short point is as we make clear in the submissions and my oral submissions that it is entirely inappropriate. HIS HONOUR: Mr Branson, you've already made these submissions. BRANSON: Yes but there's no application. HIS HONOUR: I am hearing Mr Stitt in relation to it. I'm not concerned with the way it is characterised, I'm concerned with the substance of the matter so I think you should let Mr Stitt continue. I wish to hear what he has to say. BRANSON: Thank you your Honour. Thank you very much. STITT: What my learned friend says does not accord with what happened yesterday. When the cheque was produced yesterday it became clear, in my submission, that the circle has been completed. That was a submission which I understood found favour with the Court and that's why I say now I tender that cheque as it was marked but I tender it. Because what then fell from your Honour, which my learned friend seems to be conveniently overlooking, was a statement that that cheque did seem on the face of it to complete the circle. And that in those circumstances there was a prima facie case of contempt, both of the undertaking and of the injunction. Although your Honour did say maybe the undertaking is in a different category. That was the way in which the matter then crystalised. That then led to your Honour saying to my learned friend that (a) you require the three defendants, the three solicitor partners to be present here today. Secondly that they needed to consider the position in relation to whether or not there was contempt. And thirdly that they needed to put before this court an explanation. Now, all of those facts in our submission properly give rise to a motion under pt 55 r 11 where the Court of its own motion may by order commence proceedings for punishment of the contempt which is what we understood was being done. So that my learned friend's assertion that there is no charge and he doesn't know what is going on simply won't withstand critical analysis. But in any event if it is to be asserted which seems to be the basis of these submissions that were put at half past 1 today that there isn't any formal charge then your Honour we are perfectly happy to file a notice of motion to put in place what actually happened and fell from the Bench yesterday. Because it's clear when you have regard to what was said yesterday as to what we are doing and why we are here. If your Honour in our submission first of all pt 55 r 11 applies of the Supreme Court Rules. HIS HONOUR: Just let me. STITT: And it's clear that's what happened yesterday. I can hand it up to your Honour. HIS HONOUR: I have it here thanks. STITT: Pt 55 r 11. HIS HONOUR: Of the Uniform Civil Procedure Rules? STITT: No of the Supreme Court Rules. Can I just hand it to your Honour. HIS HONOUR: They are still applicable. STITT: Yes. I will just read it on to the transcript and your Honour can have it. And I'll omit. Pt 55 r 11 (1) reads, "Where it appears to the Court on its own view that a person is guilty of contempt of the court, the Court may by order commence proceedings for punishment of the contempt." That's as we understood what your Honour was doing yesterday because your Honour when the cheque came in your Honour on its own view appeared that there was a contempt. And the way in which, as we understood it, the matter was then to proceed was in accordance with the directions that your Honour gave. HIS HONOUR: The only question - just have a look I will give it back to you. The only question is whether the language means that what I do is to direct the registrar to commence proceedings. It is not altogether clear. STITT: Well we actually have a notice of motion which I am happy to file in court with your Honour's leave. Which simply formulates what fell from your Honour yesterday, if I could hand that to your Honour. BRANSON: We have seen this for the first time. HIS HONOUR: It is not long, you can read it. BRANSON: But it is a matter of professional courtesy your Honour which has been disregarded with respect by my learned friend. HIS HONOUR: I think not. The only question I have about I have not seen the form of that motion. STITT: It is just a two line motion your Honour. HIS HONOUR: I'm talking about the parties. I don't doubt that your client is entitled to move the Court. Is there any reason why I should not give leave? BRANSON: Yes your Honour, with respect. Number one, there is no statement of charge or particulars as required by the rules we referred to in our written submissions your Honour. HIS HONOUR: I will deal with that. BRANSON: I am asked about leave, could I continue please your Honour? HIS HONOUR: Yes. BRANSON: Now my learned friend has gone in a short breath your Honour having adverted my friend to what is clear and real namely that any commencement of contempt proceedings by the Court of its own motion is by way of direction by your Honour to the registrar and then. HIS HONOUR: I didn't say that was clear at all. BRANSON: It is my submission, I beg your pardon, I overstated it. I meant to say your Honour adverted to it. That's all and with respect your Honour's preliminary view or provisional view or comment is entirely correct when one reeds the rule and understands the policy behind the formality of procedure that is required. Now there is before you. Your Honour has not been asked to direct the registrar to do anything with respect. What my friend has sought to do without any notice. HIS HONOUR: I don't need to be asked. BRANSON: No, but with respect this is plan B. Plan B is we the plaintiffs are now going to move and may I respectfully refer back to the written submissions which if you are going to do that then there must be a statement of charge in accordance with pt 55 r 7, and there is no statement of charge. And your Honour with respect, there are no particulars of alleged contempt in such a way to show precisely the omissions said to constitute contempt. And the added obligation r 7 is to identify the precise acts of the alleged contempt said to constitute the particular course or conduct and thus to entail disobedience to the court's order. And then evidence in support of the charge shall be by affidavit, that is r 8. The notice of motion, the charge and the affidavits are required to be served personally on contemnor or contemnors. With respect your Honour, those provisions are crystal clear and I am not suggesting your Honour has the time today but when one reads the very learned judgment of White J in ASIC v Sigalla (No. 4) 2011 NSWSC 62, your Honour will firmly and in my submission adopt what we put in our outline. Your Honour, there is a procedure that must be followed. The words are "must" and "shall" and they are inviolable. This is not a procedure because of the serious nature of it by definition, that is to be done informally, nor is it to be done without notice and without most importantly, particularisation of the conduct. HIS HONOUR: Mr Branson, tell me, do your clients or any of them, propose to hand over any cheques at all or seek deeds of release at all in respect of any of the persons listed in the affidavits and subpoenas and pleadings of the plaintiff? BRANSON: Your Honour, my clients are bound and continue to be bound by the orders of 24 November. HIS HONOUR: That is not the question I asked. BRANSON: Is your Honour asking me about future conduct, I'm sorry I misunderstood your Honour's question. HIS HONOUR: Of course I am asking about future conduct. Do they propose to seek deeds of release or pay any cheques to persons who are comprehended by the undertakings and the injunction which I have. BRANSON: Your Honour, may I preface your Honour's question I am briefed as you know in the Goritsas and Firth matter, I have been focussing my attention wholly and solely on that until this arose yesterday. I have not embarked on any inquiry about Xi Lee until this morning in conference. I have satisfied myself from my instructions as to that happened in that matter. I have formed a view but your Honour, your Honour is asking me about other matters, I know nothing about other matter. These clients of mine are bound by the orders, they are bound by it. HIS HONOUR: You are telling me this though, you don't know? BRANSON: I have not sought instructions about it but I am mightily confident. HIS HONOUR: So you have - just let me understand what's happened here. Yesterday a matter arose which suggested a breach of an order. BRANSON: Yes. HIS HONOUR: Today you have a conference with your clients. BRANSON: Correct. HIS HONOUR: The matter which instigated the problem was the payment of $80,000 to Mr Xi Lee? BRANSON: Correct. HIS HONOUR: You are telling me, are you, that you did not embark on, did not seek instructions about, and did not give advice about whether any other payments were in the offing? BRANSON: I didn't seek them your Honour. HIS HONOUR: I see. BRANSON: I have been busy all day on this matter your Honour, I did not venture into that territory. HIS HONOUR: I didn't ask for an explanation, I asked you just to confirm my understanding of what you have told me from the Bar table. BRANSON: I have done that. HIS HONOUR: So as you stand there now you are unable to say whether there are any other cheque payments or releases, contrary to my order, in the offing. You just don't know? BRANSON: But they continue to be bound by the orders your Honour. HIS HONOUR: Certainly they do. BRANSON: That satisfies me as counsel in the other matter, I mean they are bound, I mean your Honour I can't do anymore as senior counsel than seek instructions on the instant matter. HIS HONOUR: I have been more than polite and enabled you to defend your clients by an assertion of personal opinion which was in fact inappropriate. The Court is not concerned with the personal opinions of counsel, it is concerned merely with submissions. I have permitted that course but no further. Thank you Mr Branson. BRANSON: Thank you your Honour for listening. HIS HONOUR: Are you in a position Mr Stitt to add particulars to your notice of motion, it can be done in writing of course. STITT: Of course we are your Honour. HIS HONOUR: What I mean is. STITT: We set them out in our submissions, they lie between paras 11 and 21 of our written submissions which were served on the other side. But can I remind my learned friend what happened yesterday when as I say the cheque was produced and your Honour said what your Honour said. You then said to Mr Branson, "You do know what this is about Mr Branson, you do understand the nature of what is being alleged". And he said, "Yes I do". Now he either did or he didn't. He is now saying that he doesn't know and that he is not in a position to deal with it. HIS HONOUR: However, it is an important matter and it should be put in formal compliance with the rules. I will give you leave to file a notice of motion, shall we say within the next 24 hours? STITT: Your Honour, I have filed in the court today the only notice of motion that we wish to file. We will file a separate document if your Honour orders us to do so. HIS HONOUR: Setting out the particulars. STITT: The statement of facts and your Honour so far as the evidence is with respect concerned, I state here now in open court for the benefit of Mr Branson, that the evidence upon which we rely is that evidence which is in each of the affidavits that have been filed by Stephen Firth, by Xi Lee, each of the affidavits and I will give them a list but they have all been filed in court plus the evidence given on oath before your Honour by Mr Husaini and Mr Margiotta in the present matter. HIS HONOUR: And I think in the presence of Mr Branson. STITT: All of it was given in the presence of Mr Branson your Honour. HIS HONOUR: The Court has - for all that matters are required to be put in motion, nevertheless the Court has powers relating to the sufficiency of pleading. I propose to give leave to file this notice of motion in Court, noting your specification of the charges in paragraphs in the submissions but I would ask that you simply -- STITT: I will incorporate them in a separate document. HIS HONOUR: Do an addendum to the notice of motion. And I note you move on the basis of the affidavits thus far filed together with the transcript of the evidence from yesterday. STITT: Yes your Honour that's accurate. Now your Honour, I do at this stage tender that MFI which is the cheque and I tender that. And I also tender, I don't know whether it is necessary to tender it because it comes from my learned friend's bundle which he called the court bundle but it is a letter signed by the three defendants Keddie, Barakat and Roulstone, it is a letter dated 28 October 2010 to Slater and Gordon Ltd and your Honour the relevant parts that we rely upon are in subparagraph C to that letter. BRANSON: Can I see that please thank you. STITT: It comes out of your bundle. BRANSON: Thank you Mr Stitt. Thank you your Honour. EXHIBIT #A THE CHEQUE AND THE RECEIPT TENDERED, ADMITTED WITHOUT OBJECTION. EXHIBIT #B LETTER DATED 28 OCTOBER 2010 TENDERED, ADMITTED WITHOUT OBJECTION. HIS HONOUR: The next question is when should the motion be returnable. How long do you need? STITT: I can file the statements. HIS HONOUR: When will it be returnable is the question? STITT: I can file it by 5 o'clock this afternoon. HIS HONOUR: You filed it in Court now and I have given you leave to file it in Court you simply need the statement of particulars, they have already in fact been served. STITT: They have but I can file a separate document by 5 o'clock this afternoon. HIS HONOUR: I think you should head it in the name of the motion and call it statement of particulars. STITT: Yes your Honour. HIS HONOUR: But I think it also should list the affidavits, you don't need to prepare a separate bundle but list the affidavits. That's a different matter of particulars if you are confused about that. BRANSON: With respect your Honour the rule that I read out to your Honour by submissions in our outline requires specificity and no doubt will be identified by Mr Stitt by 5 o'clock today in what relevant respect there has been a breach of the orders. Not global commentary about cheques and so on your Honour which has been redolent of Mr Stitt's advocacy since 2 o'clock yesterday. HIS HONOUR: No, no. BRANSON: Your Honour, with respect, this is a criminal charge according to your colleague White J, so it is like a bill of indictment. HIS HONOUR: And it does not justify counsel's flourishes that reflects on the advocacy of another gentleman at the Bar table and I don't want it, it is discourteous and adds nothing to your case. Now whether or not the matter is sufficiently particularised can be a matter which we deal with subsequently for the present he really needs to identify the affidavits. BRANSON: I agree with respect, subject to what your Honour noted. HIS HONOUR: The question is, as it seems to me, the question is at present simple. The circumstances in which that cheque was paid over. On the assumption that it is not disputed, that it was in fact paid over and that it was in fact written on the date that it bears. Now, that matter is not complicated I should think Mr Branson. You resolved this, you told me, in the course of conference this morning. BRANSON: We will see what the particulars are your Honour I don't wish to be joined other than. HIS HONOUR: I think three days is probably enough. BRANSON: Three business days your Honour. HIS HONOUR: Yes, today is Wednesday. BRANSON: Supposed to be here on Monday, Tuesday next. HIS HONOUR: Very well, for the present I think the notice of motion I will make returnable for next Monday, 12 December. You are here anyway and I will then want please a date upon which the matter can be heard. And Mr Branson I should tell you in light of the issue, that is the circumstances in which that cheque came to be written, and delivered, is a simple one and as I point out one which you have told me you have already determined the circumstances of. BRANSON: Yes. HIS HONOUR: So it should not need much time nor should it need much complicated further particulars, I think you have enough. BRANSON: Your Honour I just reserve my position. It is a proceeding alleging a criminal offence according to the authorities, we will take our course in the usual way. HIS HONOUR: It is a criminal offence Mr Branson, but it is not a circus. BRANSON: I'm sorry what does your Honour mean by that? HIS HONOUR: I think my meaning is clear. BRANSON: I am not going to get involved in a debate with your Honour about it. It does seem to me that was not particularly pertinent or necessary. If your Honour is being critical of my conduct I will take it on the chin and we'll deal with it here on Monday. HIS HONOUR: I am not talking about your conduct, I am talking about turning a simple case into something else. BRANSON: It is a criminal matter. HIS HONOUR: It doesn't affect its simplicity. Now, Mr Stitt, was there anything else that needed to be dealt with today? STITT: Only perhaps for the sake of completeness and we don't have the benefit of any affidavits from these three defendants but perhaps for the sake of completion I should tender the Commonwealth Bank statement of the relevant bank account on which that cheque which is exhibit A was drawn which was produced yesterday by the three defendants. The relevant part at present is the entry for the 1 December where the cheque was presented and honoured. EXHIBIT #C ABOVEMENTIONED DOCUMENT TENDERED, ADMITTED WITHOUT OBJECTION STITT: Should there be a timetable in which any affidavit by the defendants could be filed? HIS HONOUR: I will direct that on Monday. This matter is not going to go on. I am going to deal with it quickly. I propose, Mr Branson, to give consideration to the Court exercising its independent jurisdiction, and give a direction to the Registrar from the Court. BRANSON: We cannot object to that course. HIS HONOUR: It may be that it adds nothing to the motion. I will give attention to that. BRANSON: Thank you. ADJOURNED TO MONDAY 12 DECEMBER 2011 43It is not necessary to analyse this transcript. It is evident that, apart from indicating a view about the simplicity of the allegation concerning the settlement of the XI Li matter, and repeating my prima facie view about it, with the correctness of which Mr Branson agreed "as to everything", there was not the slightest suggestion of prejudgment or bias against the defendants. Nor did Mr Branson suggest that the proposed adjournment was unfairly hasty, let alone "unseemly". It is submitted that my reference to the significance of the relationship between the profession and the Bench indicated some bias or prejudgment. This is a self-evident non sequitur . It is submitted that it was extraordinary that I should express the view, in effect, that if the defendants were ultimately found guilty it would be relevant that they had not sought to purge their contempt at the earliest opportunity. I did not at all say, let alone suggest, that as the defendants' submission puts it, "the procedural fairness 'insisted upon' would ultimately not avail the defendants". What was said could not possibly be understood as reflecting on the likelihood or otherwise of conviction. It was clearly a reference to the consequence of conviction. The point that, if guilty, the contemnors would be in a better position to seek leniency if they had admitted their wrongdoing at the outset and purged their contempt is conventional and implies no prejudgment. Secondly, it is a question of law, either correct or not, and implied no bias. Thirdly, as solicitors their relationship with the Court entailed certain responsibilities not applicable to lay persons. I would, lastly, to the above quotation from Mr Branson as to agreement, his subsequent statement as to the need for an explanation, "I am not disagreeing with what your Honour put to me at all today". 44I now move to the hearing of 12 December. It commenced with a call on notices to produce served on the defendants. Before this process was completed, a debate arose concerning the purpose of the hearing. I had stated that it was to decide procedural issues presented by the contempt proceedings and to set a date for hearing and not to hear the substantive matter. Mr Stitt QC produced a document that disclosed a proposed course of discussion with clients. I allowed it to be used for the purpose of the procedural questions, Mr Stitt QC submitting that the matter was urgent because the defendants were proposing to breach the injunction again, though I commented that it did not seem to me to establish the contention to which it was directed. He made it clear that the contempt proceedings were "directed to the Xi Li transaction" and called on the defendants to produce the originals of the tendered cheque and receipt. Mr Branson said that the original documents would be produced but that the cheque could not. 45I then indicated that I would hear from Mr Branson as to the procedural questions and asked him if he was content with that. Mr Branson said he was not and handed up written submissions. Mr Stitt QC interpolated that he understood that the contempt was not to be dealt with that day. I responded that I was dealing with, in substance, the procedural aspects of the matter, such as the hearing date, the proper form of the proceedings, the sufficiency of the particulars of the charge. I then read Mr Branson's submissions and suggested to him that the charge, so far as Mr Roulstone was concerned, that he drew a cheque on his behalf in favour of Mr Xi Li which was handed over to him in an attempt to compromise the proceedings was clear enough. I pointed out in effect that it was not clear how the other two defendants were involved and what I understood the plaintiffs were alleging in that regard. I commented that they should not be alleged unless there was an evidentiary basis for so doing. I then asked Mr Branson whether, if those matters were alleged, that would deal with the particulars question. He mentioned the notions of principal offenders, adders and abettors which "may or may not be germane to this consideration". He agreed, in effect, that the particulars in respect of Mr Roulson were sufficient. He pointed out that the "settlement occurred not by reason of the drawing and banking of the cheque" but this was done to effectuate an earlier settlement agreement". HIS HONOUR: Yes, but you might I think - I am not going to make a final determination of that - my injunction prevented any action and it didn't matter whether it was to - in pursuance to a contract already made. I think my injunction was in unqualified terms. BRANSON: I accept that arguendo and that would be a factual issue to be proven by the moving party. HIS HONOUR: I am dealing now with particulars. Then the question is-- BRANSON: With respect, what I am putting to your Honour and I didn't perhaps put it clearly enough, is that there are a lot of antecedent matters that would have to be proven to satisfactorily particularise this charge. It's not as your Honour sees it, and I understand why your Honour is seeing it simply and clearly, and saying "all right, well it's all about the cheque". My submission is to the contrary, with respect, that there is a factual matrix here which is germane, and which my learned friends would understand from their knowledge of the depth and detail of this matter, or antecedent steps just to use a neutral appellation to what-- HIS HONOUR: That may be, but-- BRANSON: They're an essential part of the charge. HIS HONOUR: --someone in the position Mr Stitt's client is entitled to particularise the charge as he wishes. BRANSON: Yes, your Honour, I accept that. HIS HONOUR: And if the only requirement is that if those particulars are proved beyond a reasonable doubt that they would constitute the offence. BRANSON: I accept that. HIS HONOUR: You may raise matters by way of defence, but that's a different matter. BRANSON: No, I don't seek to argue that proposition. 46I have set out this part of the transcript in full to show that there had been no prejudgment of the case except to the extent already indicated so far as the payment of the cheque was concerned, a position with which Mr Branson in effect agreed. It also shows that that there was no controversy about the particularisation of the case, though whether the particulars established contempt was, of course, a separate matter. 47I then moved to the particulars in respect of the other defendants, pointing out that the allegation was not well drawn but, if the particulars alleged "that Roulstone did this with the knowledge and consent or agreement of the other two parties, that would make them contemnors - if one accepted the charge on its face, which is what I must do [for the purpose of considering, of course, the sufficiency of the particulars.] Mr Branson agreed, bringing to my attention a portion of the written submissions. I observed, in effect that, taken literally, the particulars did not allege a charge against the other two defendants. I pointed this omission out to Mr Stitt QC, commenting that the words "for and on behalf of the other defendants" were ambiguous since it did not allege that what Mr Roulstone did was with the knowledge and consent of the other defendants. I rejected Mr Stitt's submission that it was enough if it were done on their behalf. Mr Stitt then sought to amend the particulars by adding "with their knowledge and consent". I pointed out that he could only do this if he were satisfied - in light of the seriousness of the charge - he had a basis for such an allegation. He sought time to consider the matter. 48The hearing moved to a consideration whether the matter was ready and able to be heard. I stated what I understood to be the factual issues, namely, on the face of it, "Was there an order, were there acts that were contradicted by the order, and then if so what punishment should ensue?" I pointed out that Mr Stitt that, in relation to Mr Xi Li, very few facts were relied on. I then added - There's some background material, of course, which is very easy to - and is not anyway disputed. There was an action, they were clients, and my order - those are not matters I think subject to controversy. There may be a controversy about the circumstances in which it came about, but that's really in Mr Branson's court rather than yours, I think, once you establish facts which would be sufficient taken on their own to prove the case beyond reasonable doubt. 49Mr Stitt QC then suggested that I might make orders as to the defendants filing affidavits. I responded that this was a matter for Mr Branson, once the plaintiffs had "establish[ed] facts which would be sufficient taken on their own to prove the case beyond reasonable doubt", a reference to the end of the prosecution case. Mr Stitt submitted that "presumably your Honour will make some order as to defendants filing affidavits". I responded that, as it was a criminal proceeding, I was not sure that I would require the defendants to file affidavits (a reference to the privilege against self-incrimination). I said that, if they did not defend the matter, they would be convicted, a reference to the possibility that they might plead guilty. (apparently in agreement) Mr Stitt responded, "A good old fashioned plea". 50It is submitted that I had intimated that the failure of the defendants to file affidavits meant that the defendants would be convicted. This is plainly wrong. It is clear from Mr Stitt's response that it was understood that I was speaking of defending the matter in the sense of a pleading not guilty. The occasion for Mr Branson to consider whether to go into evidence would be at the end of the prosecution case, providing of course it was sufficient to justify conviction. It is notable that Mr Branson made no submission at this point. 51Some further discussion about the state of the affidavits ensued. Mr Stitt QC submitted in response to my scepticism about the relevance of much of the material deposed to, that the alleged breach occurred in a factual matrix which is relevant. I said that this was correct but that I could not imagine that Mr Branson would seek to controvert that the defendants were sued in the District Court, that proceedings were brought in this Court and an order was made, whilst the affidavits referred to other matters which did not go to establishing the contempt. I added that Mr Branson could object to the affidavits and, though I would be surprised if Mr Branson wished to cross-examine because of the nature of the matter (meaning the uncontroversial facts), he must have the opportunity to cross-examine on the affidavits. 52I then summarised the position as requiring formalising of the charges against Messrs Barakat and Keddie and setting a date for hearing, indicating that I was reluctant to hear the matter in vacation, which was impending and asking if it could wait until the resumption of term. Mr Stitt QC said his client was anxious for a speedy resolution, referring to Mr Branson's refusal to indicate whether his clients were prepared to obey the order and cease the conduct which, he submitted, the evidence disclosed was continuing. I said, in effect, that this would entail consequences. 53I then turned to Mr Branson saying that, "so far as Mr Roulstone is concerned, I think it is fair to say that the facts fall within a very small compass". He responded that this was not so, that on his instructions, there was a (relevant) factual matrix antecedent to the drawing of the cheque, adding however, "I understand where your Honour is coming from and I accept that as being a clear and simple view of the matter". I pointed out that Mr Roulstone must know the circumstances in which the cheque came to be written, with which of course Mr Branson agreed. I then asked how long he needed to answer the charges. He submitted that there was no intrinsic urgency and the defendants would be ready in the new term. I repeated my question. Mr Branson said that he had not sufficient time to be able to assess how much time was needed. He mentioned the need to speak to at least one person who did not live permanently in Australia. I then asked him if his previously outlined defence was that "this cheque was paid pursuant to a contractual obligation, that had been created prior to the injunction". The following exchange ensued - BRANSON: In effect yes, your Honour. HIS HONOUR: What you seek to do is to prove that such a contract existed? BRANSON: That will be part of our case, your Honour, correct. HIS HONOUR: Was there a deed of settlement and release? BRANSON: I think in this case not, but I haven't checked this through. I have asked for Mr Tassell to investigate the matter. I believe he's doing it conscientiously but for my part I haven't had the time, notwithstanding working all weekend, to drill down on this. HIS HONOUR: Accepting that at its highest that this was done pursuant to a contract already in existence, I am having difficulty in seeing how that is a defence to - how that makes this not a breach of my order. BRANSON: It does depend on the true and proper interpretation of your Honour's orders, and that's something that we are looking into. I need to preserve that but that's my provisional view about it, that the drawing of a cheque is not necessarily a contravention of the wording of the injunction. HIS HONOUR: No, it's the payment of the cheque which is crucial. BRANSON: Sorry, the payment, but that is something that I've considered but briefly, your Honour. HIS HONOUR: The payment of a cheque must amount to the communicating with Mr Xi Li, because he has-- BRANSON: I am not in a position to positively assert one way or the other. HIS HONOUR: --signed the receipt for the cheque. BRANSON: I understand your Honour has that view. It's been pressed several times by Mr Stitt, and I have to take refuge in this, that I have not devoted meticulous attention to how this charge that was presented to us on Thursday last week should be answered. I have not spoken material witnesses, your Honour. I merely wish to reserve my position, if I may. HIS HONOUR: Mr Branson, I must say that I think your submission is somewhat tendentious. BRANSON: I don't particularly appreciate that, your Honour. I have been at the bar for 36 years. I'm not used to being accused from the bench of being tendentious. I have made a responsible submission to your Honour. I have explained that I have not given this my meticulous attention. Mr Branson again raised his voice. I asked him not to. 54It seems to me that my response to these submissions was entirely reasonable. He had informed me during the previous hearing on 7 December that - Well, your Honour, yesterday I indicated to your Honour, properly in my view, while we were in discussion, that I didn't vehemently seek to challenge your honour's view expressed prima facie. We have now looked into the matter very thoroughly, not to a state of perfection yet, but I have to indicate to your Honour that I formed the view that there has been no contempt and I have given that advice. And how it comes out will be fundamentally of course, your honour, a matter of evidence... He added a short time later - ... I understand perfectly why your honour is anxious about it and prima facie, as I indicated to your Honour yesterday, it seemed to be how your Honour described it, but upon investigation I am informing your Honour as Senior Counsel in my view there has been no breach. 55It should go without saying that it would have been grossly improper to make such a submission and proffer such an opinion to the Court without carefully considering all relevant matters that gave rise to the suspected breach, which he accepted had prima facie been committed, including of course what would be or was likely to be said by material witnesses. The matter which had been particularly mentioned was the payment of the cheque to Mr Xi Li. The submission that the payment of the cheque was "something that I've considered but briefly" and that he was "not in a position to assert one way or another" whether the payment of the cheque amounted to a communicating with Mr Xi Li" and he had not devoted "meticulous attention" to is extremely difficult to reconcile with his solemn unqualified representations that he was satisfied there was no breach of the injunction. He went on to state that I was asking him to make a submission "which I haven't considered ", that being whether the payment of the cheques was a breach of the order. I then said, charitably, as I think - HIS HONOUR: -- that on the last occasion I indicated - first of all, I find it, although naturally I must accept what you say about what you have thought about and what you have not, it is an odd thing as it seems to me that senior counsel appearing for solicitors charged with contempt would not regard that as probably the most important question in the case, as distinct from some action in which as you point out the statement of claim has not yet been filed. Nevertheless, it's a matter for you to consider what matters you give priority to, but I should have thought this is a matter of simplicity - that is whether the payment of a cheque and the obtaining of a receipt for that cheque for the purpose of settle a case involved contacting, approaching or in any way communicating or attempting to communicate with Mr Xi Li. And I, as I sit here, without the benefit it is true of your submission, find it extremely difficult to understand how the payment of a cheque and the obtaining of a receipt for it, and the deduction of the money which I think has been established from the bank account, could otherwise be a communication or a contacting with Mr Xi Li who was the recipient of that cheque, and the signatory of the receipt. So of course you will have an opportunity to seek to explain my orders in a way that would mean your client was not in breach of it, but I do not think it is a complicated matter. 56The submission of the defendants that Mr Branson's attempt "to disengage from a dissection of the possible defences" was met with the proposition that his submission was "somewhat tendentious" is very much less than candid characterisation of what occurred. I was attempting to gauge the likely scope of the proceedings and how long the defendants needed to prepare their defence. Mr Branson's declining to deal with even the simplest of particulars by denying any serious consideration of them was certainly "attempting to disengage from a dissection of possible defences". The vice was that he did so by denying that he had given sufficient consideration to them. For the reasons I have already mentioned, this denial was justifiably described as tendentious. 57It is submitted that I had predetermined the breach of the order. Since the order forbade communication and since a cheque signed by Mr Roulstone had found its way to Mr Xi Li and was banked, these being undisputed facts, my suggestion that on the face of it this amounted to a breach was not only completely reasonable, but as I have pointed out, Mr Branson agreed with it on a number of occasions. I did not rule out the possibility of an innocent explanation. 58I then returned to the question of how much time was needed by the defendants to respond to the charge. Mr Branson said that it was subject to the availability of witness, one of whom was not a resident of Australia. I asked who that witness was. Mr Branson replied that he was not bound to disclose that as this was a criminal charge. The following ensued - HIS HONOUR: I'm sorry, Mr Branson, of course it is, and I am directing a time for it to be heard. You are telling me that a witness is overseas and I'm afraid that I won't accept it's a material witness--- BRANSON: Why not, your Honour? HIS HONOUR: --on your say-so. BRANSON: Oh really? HIS HONOUR: Yes. BRANSON: I really appreciate that from your Honour. Thank you. HIS HONOUR: I'm sorry, it's the way in which these matters are conventionally conducted in the criminal jurisdiction. Merely because counsel asserts that some witness is overseas, seeking-- BRANSON: I don't wish to be heard any further. Your Honour is free to make any directions you wish, thank you. HIS HONOUR: Very well, if that's your position. BRANSON: I am here. I have made a submission in writing, and now your Honour is insulting me from the bench. HIS HONOUR: I am not insulting you. BRANSON: You are. HIS HONOUR: That's a preposterous proposition, Mr Branson. It's a preposterous proposition. You tell me you don't really understand my order. You tell me that you don't really understand the case because you have been concentrating on other things over the weekend, and then you tell me "I have a witness who is essential who is overseas, but I won't tell you who he is or why he is essential." Mr Branson, those are not propositions which any judge would accept for the purpose of setting a date. Mr Stitt, what date is convenient to you? You need to consider the - I will shortly break for morning tea. You need to consider the form of your notice of motion. 59Leaving aside Mr Branson's hectoring approach and accepting that his expression of indignation was genuine, it was rightly characterised as preposterous. I had not required evidence substantiating his claim that the witness was material and overseas, simply his identity. No doubt I would have gone on to ask in what way his evidence was material. This would have been necessary so that proper consideration could be given to the setting of a trial date. As I pointed out, Mr Branson had just told me, in effect, that he had not given more than brief attention to the contempt case and yet he identified a material witness whose availability was necessary to his client's defence. In my view, no reasonable observer would have thought from my declining to accept Mr Branson's say so as to the materiality of the witness that I was biased against his clients or had prejudged the case. It is submitted that my approach "ignored the right of an accused person to elect whether to call evidence or not and not to be required to reveal whom it may or may not call to the tribunal of fact in advance of the hearing". In general, of course, this is a correct proposition, but Mr Branson was urging on me a certain course in respect of the date of the trial and referred to the existence of this witness in support of a delay. It cannot be the law that a judge is bound to accept that the existence of such a witness justifies the course propounded without being given sufficient details to enable the submission to be properly weighed up. Furthermore, to do so would be grossly unfair to the plaintiffs who would, in that event, never be in the position to argue for a speedy trial. Mr Branson was not required to disclose the witness' name. It was simply indicated that I would not act on his assertion in considering the question of the date of the hearing. A judge is never bound to accept the bare assertions of counsel from the Bar table and an expression of indignation when he or she declines to do so is inappropriate. 60Mr Stitt QC then alleged that that it looked as though there had been another breach in the matter of Xiao, which needed to be added to the charges. I said that I wished to deal with the current matter and that, in due course, the question of adding a further charge could be considered. Mr Stitt asked for access to the documents that had been produced in relation to Mr Xiao since, apparently, a cheque was drawn in his favour on 5 December. I pointed out, amongst other things, that the notice to produce had been issued in the principal action and there was a question whether it could be relied on in the contempt proceedings. I declined to permit the notice to be called on at that stage and suggested that the correct procedure was to issue a subpoena addressed to Verekers who, were, of course, not defendants in the contempt proceedings. The discussion then reverted to the hearing date issue. 61Mr Branson submitted that, if the contempt proceeding were urgent, his clients would consent to a hearing early in term subject to the availability of dates. Following the morning adjournment I dealt with the production of original documents, Ms Castle then making submissions on behalf of the defendants. I suggested a line of reasoning, I understand not being controversial, as to the whereabouts of the original of the receipt for the XI Li cheques. The matter was left at the point that Ms Castle intimated that the defendants never had possession of that document. 62Mr Stitt QC then confirmed that he was in a position to make the foreshadowed amendment as to the other defendants. I then said that, though urgent, the matter should not take up the resources of the Court in vacation and should be heard on the first Friday in term. Mr Stitt proposed a timetable in respect of the principal proceedings. He added that he needed to consider the Xiao material and, once satisfied, the matter should proceed, a separate notice of motion would be filed. I then set down the hearing for 3 February 2012 and said to Mr Branson, that he should assume that the proceedings would all three defendants. He said' I understand your Honour". We then moved to merely procedural matters which did not give rise to any controversy. The proceedings were then adjourned. 63It is submitted by the defendants that by fixing the date for hearing of the principal case for 20 February 2012 I had ignored the interests of the fourth and fifth defendants. It is true that I had not adverted to their interests but of course if they had not been given timely notice of the hearing or otherwise were unfairly prejudiced by the fixing of the date, with interlocutory matters outstanding, I would necessarily make adjustments to ensure that, so far as they were concerned, the proceedings were fair. In fixing the date for trial I assumed that such matters would be clarified in due course. At the same time, the situation of the fourth and fifth defendants did not reflect on that of the Keddies defendants. This complaint, so far as they are concerned, is a mere makeweight. 64I also reject the argument, that at all events was never put, that it "beggars belief" that I should think it proper to determine the contempt proceedings and also the principal proceedings. (I point out in parenthesis that this use of exaggerated and indignant language, which may be seen throughout the defendants' submissions, is inappropriate. Counsel is not addressing a public meeting.) Of course, depending on the findings which I make in the contempt proceedings, it may be that another judge will need to try the substantive hearings. But this cannot be decided at this time. I note that the defendants' submissions rather assume convictions or unfavourable findings on credit. There is nothing in this point. 65In my view the case for disqualification made by the defendants relies on selective quotations from the transcript, taking statements out of context, drawing unreal and unfair inferences, and unjustified generalisations. I have no hesitation in concluding that no reasonable person, having paid attention to the course of proceedings, might apprehend any bias against the defendants or prejudgment of the cases made against them. Put otherwise, I am satisfied that no fair minded lay observer might reasonably apprehend that I might not have brought or bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide. ********** 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. Decision last updated: 08 February 2012