Carbotech-Australia Pty Ltd & anor v Yates & 14 ors

Carbotech-Australia Pty Ltd & anor v Yates & 14 ors - [2008] NSWSC 540 - NSWSC 2008 case summary — Zoe

[91]

39 It is undoubted that a Referee under Part 20 is bound by the rules of natural justice [ Xuereb v Viola (1989) 18 NSWLR 453, 466G]. However, as Cole J said in that case, a Referee is not required to conduct his inquiry as if it were a trial by a judge; subject to any directions of the Court, the Referee may conduct proceedings in such manner as he thinks fit, and is not bound by the rules of evidence but is at liberty to inform himself in such manner as he thinks fit. Nonetheless, the Referee must be actually and apparently impartial, and an appearance of impartiality may be compromised if the Referee has private dealings with one of the parties [ Xuereb v Viola (1989) 18 NSWLR 453, 469-70]: Another aspect of natural justice is that the Referee must be actually impartial, and must be perceived by a disinterested bystander to be so. Accordingly he must not hear evidence or receive representations from one side behind the back of or in the absence of the other. As Gibbs CJ said in Re JRL; ex parte CJL (1986) 161 CLR 342 (at 346-347): "It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v Government of Malaya [1962] AC 322 at 337. McInerney J stated the practice as it is generally understood in the profession in Reg v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127 as follows: 'The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.' The principle, which forbids a judge to receive representations in private, is not confined to representations made by a party or the legal adviser or witness of a party. It is equally true that a judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court …." And as Mason J, as he then was, said (at 350): "A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice." How are such principles to be reconciled with Pt 72, r 8, and in particular r 8(2)(b) which permits the Referee to "inform himself … in relation to any matter in such manner as the Referee thinks fit". Further, it has become common for orders made pursuant to Pt 72, r 8(1), to permit a Referee "to communicate with expert retained on behalf of the parties or any of them". The utility of such a direction is obvious for it enables a person technically qualified who does not understand a particular technical aspect of the report of an expert retained by a party to inquire of that expert what he meant. But such an order is not to be understood as permitting a Referee to have a private conversation with one expert. He may call the experts for opposing parties together to seek clarification, or he may arrange a conference telephone discussion with the experts for competing parties. Pursuant to r 8(2), the Referee may be permitted to carry out his own tests. But if he does so, prior to preparing his "just opinion" he must give, in most cases, the information so derived to the competing parties to permit them to express their views upon it to him. There is nothing in Pt 72, r 8, or in the usual order made by the Court pursuant to r 8 (1) which permits private discussions between the Referee and only one party or his expert. Similarly, normally if communications are received by a Referee from a party they should be provided to the other party, unless it has previously been arranged that the party providing a document to the Referee will also provide it to his opponent.

[94]

41 The plaintiffs contend that his Honour: · made findings of fact not open to him on the evidence, in finding that the Referee (a) had 19 email communications with the plaintiffs' solicitors to the exclusion of the defendants' solicitors and had himself asserted that he had communications to that extent, (b) heard evidence or received representations from the plaintiffs behind the back or in the absence of ERA, and (c) had provided a draft report to the plaintiffs' solicitors for comment; · misapprehended and misapplied settled law, in that he did not attribute to the reasonable and fair-minded lay observer knowledge of the actual facts; · failed to consider the material facts and actual circumstances in which the claim of apprehended bias arose; and · took into account an irrelevant consideration, namely that the plaintiffs in these proceedings make allegations of fraud and improper conduct against the defendants. 42 As to the contention that the Associate Judge erroneously found that the Referee had 19 email communications with the plaintiffs' solicitors to the exclusion of the defendants' solicitors and had himself asserted that he had communications to that extent, I am satisfied - notwithstanding the submissions of Mr Freeman, for Era, to the contrary - that the Associate Judge did make such findings, as is explicit in para [27] of his Honour's judgment (set out above), as well as in para [17]: 17 … Regarding this ground, Era relies upon the fact that, according to the Referee himself, 19 e-mails and four telephone conversations passed between himself and the solicitors for the Plaintiff, Clayton Utz, none of which e-mails or telephone conversations were disclosed to Photios Vouroudis, the solicitors for Era. 43 In fact, what the Referee wrote, as set out in [14] and [15] above, did not assert that all 19 e-mails and four telephone conversations were solely with Clayton Utz. It is accepted for the purposes of the appeal that there were 13 email communications and 4 telephone conversations between Clayton Utz and the Referee to the exclusion of Photios Vouroudis. However, to the extent that this reveals any error in the Associate Judge's reasons, it is immaterial. It was the apparently routine engagement of the Referee in ex parte communications with the plaintiffs' solicitors to the exclusion of Era's solicitors that founded the Associate Judge's conclusion that there was a reasonable apprehension of bias. Whether it occurred on 19 or 13 occasions made not the slightest difference to this. I would not allow the appeal on this ground.

[95]

44 The remaining contentions in respect of this issue are all encompassed in the proposition that in the circumstances of this case, the ex parte communications between Clayton Utz and the Referee did not warrant a conclusion of ostensible bias. The contrary case, advanced by Era and accepted by the Associate Judge, focussed on the communications of 28 and 30 May, and what followed. Era emphasised that on 28 May, the Referee sent an email to Clayton Utz - and not to Photios Vouroudis - noting that he spent time of approximately "19 emails and 4 telephone conversations over several weeks" , attaching a draft of his report and concluding " please let me know if you have any problems with this report" . This was followed by another inquiry as to whether the report was satisfactory the next day, in response to which Clayton Utz suggested amendments, which were adopted by the Referee in his 30 May report. Era submitted that it was open to his Honour to make a finding that the fact of the ex parte emails and/or the telephone calls, irrespective of their number or content, would create in the disinterested bystander a reasonable apprehension of bias, given the context of the serious nature of the allegations made in the proceedings generally, that the Referee had Mr Vouroudis' contact details and the false excuse given by the Referee for not communicating with Mr Vouroudis (that he did not have Mr Vouroudis' contact details), that even if only matters of procedure were dealt with Era was denied the opportunity of having input into those matters, that the Referee refused to disclose to Era the substance of his communications with Clayton Utz (the identification in his report of the fact that communications were made being insufficient), that (two days before the draft report was sent to Clayton Utz) the Referee telephoned Clayton Utz wanting a retainer with them (which was said to be clear evidence that the Referee considered himself to be acting only for the plaintiffs), that the Referee never disclosed that conversation to Mr Vouroudis nor could its substance be identified from the face of his report and was not disclosed by Clayton Utz until an affidavit served in February 2007, and that notwithstanding that the orders required the Referee to report to the Court he sent the first draft of his report only to Clayton Utz on 28 May 2006 with the statement " please let me know if you have any problems with this report" and then on 29 May, 2006 again asked Clayton Utz "Is the Report satisfactory?" .

[98]

47 The process by which that conclusion was reached illuminates the relevance and importance of the circumstances of the individual case in determining whether an inference of apparent bias will be drawn from the fact of communications between a judicial officer and one only of the parties. Gibbs CJ said (at 349-50) (emphasis added): In the present case it was wrong of the counsellor to attempt to influence the judge and ill-advised for the judge to speak to the counsellor in private. Counsel for the prosecutor referred us to authorities which establish that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: see Livesey v NSW Bar Association . I rather think that the present case is governed by an analogous principle, that justice must not only be done but must manifestly be seen to be done; when a judge has received in private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interest they were made - it is enough that they might do so: see Kanda v Government of Malaya . Examples of a strict application of the principle are provided by R v Justices of Bodmin; Ex parte McEwen and Garrihy v Wyatt . In the present case, the counsellor had formed a view adverse to the husband. She had expressed that view, not only in her report, but also in the presence of counsel in the judge's chambers. She had gone to see the judge because she believed that it would be detrimental to the child to remain for long in the husband's custody. The husband was entitled, not unreasonably, to fear that the counsellor may have made remarks adverse to him when she was alone with the judge and that the judge might have been influenced by them. Justice would not be manifestly seen to be done if in those circumstances the judge decided the case. The judge should not continue to hear the case and the order nisi for prohibition should be made absolute. 48 Mason J said (at 351, 355-7) (emphasis added): As McInerney J pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other , subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge . The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong ; Livesey v NSW Bar Association . This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done. … But the critical question is whether in all the circumstances the parties or the public would reasonably apprehend that the judge would not bring an impartial and unprejudiced mind to a hearing and determination of the custody proceedings between the parents of the child . Or to put it another way, the question is whether the principle that justice must be seen to be done requires that the judge be disqualified. In considering this issue the first point to be made is that the view which Ms Bernet expressed to the judge in private chambers during the luncheon adjournment strongly favoured the wife. It appears that she asked that the child be placed with the mother and said that the sooner that this took place the better it would be emotionally for the child . It is true that Ms Bernet had expressed a similarly strong view in favour of the wife in her report dated 31 January 1986 which became available to counsel during the hearing on 4 February. In that report Ms Bernet described the child as being "on the way to a severe anxiety neurosis". However, this was the first indication that the child might be affected in such a way. It excited a question as to Ms Bernet's qualifications (which were not known) to express such an opinion. It made it very likely that Ms Bernet would be called as a witness, more particularly because the husband wished to have the child examined by a psychiatrist or psychologist. One other circumstance must be mentioned and it is important. Ms Bernet, before seeing the judge, had spoken to the wife during the course of proceedings on 5 February, saying that the proposed adjournment was outrageous and that she proposed to do something about it. In fact she discussed the matter with the Director of Court Counselling at Parramatta before seeing the judge. In this situation the discussion between the judge and Ms Bernet was significant in several respects. It resulted from an approach by a potential witness who strongly supported the wife's case and seems to have expressed that support to the judge. She apparently informed the judge of her qualifications and thereby indicated that her opinion was that of a qualified expert, a matter which was in question in the proceedings. Moreover, the reference in the discussion to the Director of Court Counselling at Parramatta suggests the possibility, not negatived by the evidence, that Ms Bernet claimed that her approach was indorsed by the Director. In disclosing the approach which had been made, the judge did not reflect adversely on it. On the contrary the judge seems to have proceeded on the footing that the initiative taken by Ms Bernet required serious consideration by the court and counsel for the parties. In effect the judge invited counsel to respond to the recommendations of the court counsellor and to obtain instructions to enable them to do so. The judge did not treat the court counsellor's approach as irregular and did not assure counsel that she intended to disregard completely what the court counsellor had said to her . It is evident from what I have said that there is a firm basis for a reasonable apprehension that the judge will not bring to bear an impartial and unprejudiced mind on the resolution of the custody issue. It is not to the point to say that the prosecutor has failed to establish the existence of any bias on the part of the judge. The courts have always refused, for obvious reasons, to embark upon an inquiry whether a judge will determine the issues impartially and with an unprejudiced mind. It would be idle for this Court to say that it is confident that the judge will act impartially. We have to ask ourselves how the matter would appear, viewed reasonably, to the public and the parties. And when we ask this question the answer that immediately presents itself is that the judge, who in all probability would be called upon to evaluate the correctness of the opinion of the court counsellor and her credibility as a witness, had the unprecedented advantage of a private discussion with her on the very issue for decision in the case, the counsellor being a convinced, and perhaps convincing, advocate of the wife's cause in the case. The fact that the counsellor is an officer of the court is a matter which enhances, rather than diminishes, cause for concern. A fair-minded observer, as well as a concerned parent who is a party to the litigation would naturally and rationally conclude that the counsellor's standing as an officer of the court would ensure that her opinion would carry weight with the judge. The subsequent discussion between the judge and counsel in private chambers would have done nothing to dispel that cause for concern. The case is plainly one in which the principle that justice must manifestly be seen to be done requires that the matter be heard by another judge: see Goold v Evans & Co . 49 Wilson J (who dissented, holding that no reasonable apprehension of bias arose) said (at 360-1)(emphasis added): The prosecutor complains of the conduct of the judge in allowing the counsellor to speak to her in private concerning the case and then in permitting, in the presence of counsel representing each of the parties, a general discussion to proceed in her chambers concerning procedural arrangements attending the adjournment. There is no transcript of any conversation that took place in the judge's chambers. However, although the judge does not detail in precise terms the matters that were referred to, it does appear that before counsel were called in the counsellor told the judge that having spoken to the Director of Court Counselling at Parramatta she wished to make the two recommendations to which reference has already been made. When counsel joined them, the judge said that the Counselling Service, having regard to the welfare of the child, was extremely concerned about the length of an adjournment and asked the counsellor to repeat the two recommendations that she wished to make. In the course of the discussion that followed the judge mentioned that the counsellor's professional qualifications were those of a clinical psychologist. Reference was made to the counsellor's recommendation, expressed in her second report, that it would be better for the child if she were placed in the custody of the mother whereupon the judge said, in effect, that for that to happen there would have to be a hearing of an application for interim custody. With regard to the recommendation that separate representation be provided for the child, counsel for the wife expressed support for that view and foreshadowed an application to that effect. Although there is no suggestion that any other aspects of the case were referred to in the private discussion between the judge and the counsellor, it remains an important fact requiring consideration, as counsel for the prosecutor correctly submitted, that the conversation occurred at all. However the apprehension that might reasonably be generated by such a happening can only be determined in the light of all the circumstances including the subsequent conduct of the judge . 50 Brennan J said (at 370-1)(emphasis added): Here, it is known that a counsellor whose views are antipathetic to the husband's case, saw the judge privately and had a conversation with her which reinforced the counsellor's concern (as stated in the report) that the child ought not be allowed to remain in the husband's custody. The judge ascertained Ms Bernet's qualifications to make a diagnosis that the child was in the early stages of a neurotic process. Ms Bernet made a submission to the judge with reference to the order which the judge should make during the adjournment, and that submission reinforced the view she had expressed in the report that the wife should have the custody of the child. The judge thus had a private conversation with an expert witness whose opinion was to be challenged, and it might reasonably be thought that that conversation enhanced the witness' credibility in the judge's eyes. Then a discussion took place in the presence of counsel in which the judge sought confirmation of the counsellor's views that the child should be placed in the wife's custody as soon as possible. An impression that the judge was influenced by the discussions she had had privately was strengthened by the judge's request to counsel to seek instructions on the recommendations which Ms Bernet had made. It is reasonable for the husband to apprehend in those circumstances that the judge will not be able, however conscientiously she tries, to remove from her mind the impermissible effect of the discussions she had in chambers and thus to bring an impartial and unprejudiced mind to the determination of the matter pending in the court . Acknowledging the good faith of all involved, it is none the less necessary to make absolute the order nisi. I would so order. 51 Dawson J, who also dissented, said (at 371-2)(emphasis added): It is an understandable tendency to assume the existence of a reasonable basis for supposing bias where there is, as in this case, an apparent departure from the proper standards of judicial behaviour. But the whole of the circumstances must be considered and such a conclusion must be firmly established and should not be reached lightly : Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ; Reg v Watson; Ex parte Armstrong ; Reg v Lusink; Ex parte Shaw . Moreover, the whole of the circumstances are not confined to the conduct said to afford reasonable grounds for suspecting a lack of impartiality. They include what was done by the judge subsequently, which may be sufficient to eradicate any reasonable apprehension of bias notwithstanding an earlier lapse in the observance of proper procedures . It is clear that an initial failure to hear a party or to allow him to put his case may be cured by giving him an appropriate opportunity to be heard at a later stage: see Ridge v Baldwin . It seems to me to follow that it must also be possible to remove an apprehension of bias on the part of a judge which might otherwise arise out of the failure to hear a party. After all, that kind of bias is not bias through interest or preconceptions existing independently of the case . Suspicion of bias of the latter kind, where there are grounds for it, may well be ineradicable: see Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd . Here the suggested bias is an inability to act impartially which is said to have been demonstrated by the fact that representations were made to, or evidence was heard before, the judge in the absence of the parties. Remembering that both parties were absent at the time, it does not seem to me to have been a situation which was necessarily incapable of correction either as regards fairness or as regards the appearance as well as the fact of impartiality. The learned judge took steps to correct the situation which had arisen and I shall refer to these in a moment, but I should first observe that the conduct which is called in question took place in a somewhat special situation. 52 The passages to which I have referred in JRL establish that while the (mere) fact that an ex parte communication takes place is an important one, it is not decisive, and closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications. It will depend on the facts of each case whether communications between a judicial officer and one party to the exclusion of the other give rise to a reasonable apprehension of bias, and one must look to the whole of what happened to establish whether such an apprehension should be inferred. The reasonable and fair minded lay observer according to whose standards the question of ostensible bias is judged is taken to have knowledge of the material objective facts [ Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 95 (Deane J); Kartinyeri v The Commonwealth (1998) 156 ALR 300, [16]; S&M Motor Repairs Pty Ltd v Caltex Oil (Australasia) Pty Ltd (1988) 12 NSWLR 358, 380F-G, 381D-E (Priestley and Clarke JJA); Johnson v Johnson (2000) 201 CLR 488, 493-494 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 508-509 (Kirby J)]. In S&M Motor Repairs , Priestley and Clarke JJA, said (at 380F-G) that for the apprehension of the parties or the public to be reasonable, it must arise upon an understanding of the actual circumstances in which the claim of possible bias is made, and added (at 381D-E): We stress that whenever a court is called on to decide whether disqualifying bias or apprehension of bias exists all the circumstances of the particular case must be looked at.

[108]

61 Fifthly , the communications that the Referee received were (with the possible exception of those to which I shall specifically come) entirely procedural or administrative in nature, and contained no comments or submission on the substance of the report - as Mr Vouroudis conceded in cross-examination before the Associate Judge. They are in the nature of what would be expected when a scientist is appointed as a Referee by Court order. Someone on behalf of the parties has to communicate with him, organise payment of his fees, provide him with documents, answer queries, and enquire as to the progress of his report; the circumstance that the Order provided for the plaintiffs' solicitors to give the Referee a sealed copy of the order and the Code effectively placed Clayton Utz in that position. 62 The first possible exception is the communications that provided to the Referee the relevant formulas. However, the orders provided for each party on request to provide its formulae to the Referee (with no reference to provision to the other), and it was the subject of specific correspondence between the parties that each would not have access to the other's formulae, and no inference of bias could be drawn from the circumstance that the communications providing the formulae were not copied to the other party. 63 The next suggested exception is the "retainer" telephone conversation that took place between the Referee and Mr Fairbairn of Clayton Utz on 26 May 2006. Era submits that it could not be described as procedural. I disagree. I have already explained that I do not consider that the "retainer" conversation bears the sinister connotation which Era seeks to attribute to it, but was an innocent inquiry by a naïve Referee as to how he was going to be paid and whether there should be a retainer. It is not without significance that the Referee was required by the Order to, and did, include in his report, a statement of adherence to the Expert Witness Code, and a declaration that he had no previous commercial relationship with either party. In that context, I do not accept that the reasonable observer would infer that the Referee might be under some mistaken apprehension that he was retained primarily, if not exclusively, on behalf of the plaintiffs. In those circumstances, an informed observer would not infer, from the circumstance that the Referee had inquired whether there should be a retainer when discussing arrangements for his remuneration with the firm which had first approached him and attended to the administrative arrangements for his appointment, that he might bring other than an impartial mind to the issues remitted to him.

[109]

64 The next possible exception is the email of 28 May, which enclosed an unsigned copy of his report and asked "Please let me know if you have any problems with this report". It was this that the Associate Judge described as submitting a draft report for comment. If in fact this communication was, or could reasonably be perceived as amounting to, an invitation extended only to the plaintiffs, to the exclusion of Era, to make comments on the substance of a discussion draft report before it was finalised, a reasonable apprehension of bias would undoubtedly be established. However, once again, the context is illuminating. His Honour said that there was no purpose in the Referee making the inquiry if the first report was not a draft, and that if it was not a draft it would have been signed. On their own, those might have been important indicia. But there are other, contrary, indicia. The report was provided under cover of an email requesting payment and setting out a calculation of the hours involved, which suggests that the Referee regarded his task as having been completed. As already mentioned, it contained a statement of adherence to the Expert Witness Code. It was sent two days after the 26 May 2006 conversation, in which the Referee said that he should complete the report "in the next few days" . The email is headed "Report to the Supreme Court of New South Wales" , and contains no reference to the attached report being a draft. Nor does the attached report bear any marking suggesting that it is a draft. Further, in my view, when seen in context - including, in particular, that Clayton Utz had initially approached him, had forwarded the Order to him and had been his contact point on matters of administration; that the Referee was aware that the information in the Report was confidential; and that the Referee was preparing a report for the Court and was not familiar with the process - the concluding words "Please let me know if you have any problem with this report" were not an invitation to comment on or make submissions about the merits of the report with a view to influencing him towards a different opinion, but an inquiry as to whether the report complied with formal requirements, and to establish that he had done all that was required of him. In fact, no substantive comment was forthcoming - although a suggestion was made as to the structure of the report to avoid compromising confidentiality. In fact, no change to the substance of the report was made, and the final signed report was identical to the draft (except for the structural changes to address confidentiality concerns). And in due course, Era was afforded and took avail of the opportunity of making submissions to the Referee about the substance of his report before it was submitted to the Court, to which the Referee provided a reasoned response.

[116]

71 In my view, argument about the sufficiency of reasons in this respect is superfluous. An appeal under s 75A is not limited to error of law. Although Mr Vouroudis was cross-examined before his Honour, none of the Associate Judge's findings turn on demeanour or depend on any advantage enjoyed by the primary judge over an appellate court. If the Associate Judge were right to conclude that there was no waiver, the inadequacy of the supporting reasons will not ultimately avail the plaintiffs. Conversely, if he were wrong, it is unnecessary to consider the adequacy of his Honour's reasons. The issue for this court is simply whether there was a waiver. 72 It follows from Photios Vouroudis's letter of 1 June 2006 that they were aware from no later than that date that there had been a significant number of communications between the Referee and Clayton Utz to which they had not been privy, such as to justify the assertion on their part that "the whole integrity of the process had been jeopardised" and that "in the circumstances, this conduct has given rise to a reasonable apprehension of bias". By 2 June 2006, Photios Vouroudis had been provided with a copy of the email communications between Clayton Utz and the Referee. They also had the Referee's Report, and were aware from it of the fact, though not the detailed contents, of the telephone conversations between Clayton Utz and the Referee. Yet despite that knowledge, Era did not ask the Referee to withdraw from the reference on the basis of ostensible bias. Rather, Era embarked upon the inconsistent course of making further submissions to, and engaging in debate with, the Referee, as to the substance of his findings. In particular, on 5 June, over Clayton Utz's objection, Photios Vouroudis sent to the Referee a submission, taking issue with the substance of his report, and seeking to have him reach different conclusions. The Referee responded on 6 June 2006. Further correspondence culminated in Photios Vouroudis' email of 23 June 2006, in which they accused the Referee of not intending to comply with the Orders of the Court.

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Judgment (146 paragraphs)

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Cases Cited (10)